Federal Register of Legislation - Australian Government

Primary content

Crimes Act 1914

  • - C2005C00518
  • In force - Superseded Version
  • View Series
Act No. 12 of 1914 as amended, taking into account amendments up to Act No. 100 of 2005
An Act relating to Offences against the Commonwealth
Administered by: Attorney-General's
Registered 03 Aug 2005
Start Date 03 Aug 2005
End Date 15 Nov 2005

Crimes Act 1914

Act No. 12 of 1914 as amended

This compilation was prepared on 3 August 2005
taking into account amendments up to Act No. 100 of 2005

Volume 1 includes:    Table of Contents

Sections 1–23WLA

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:    Table of Contents
                                 Sections 23WM–91

Schedule

Note 1

Table of Acts

Act Notes

Table of Amendments

Notes 2 and 3

Table A

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

 

 

 

 


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

3............ Interpretation...................................................................................... 1

3AA...... State offences that have a federal aspect............................................ 2

3A......... Operation of Act................................................................................ 2

3B......... Arrangements with States, Australian Capital Territory, Northern Territory and Norfolk Island [see Note 2]    2

3BA...... Application of the Criminal Code...................................................... 2

Part IAA—Search warrants and powers of arrest                                                2

Division 1—Preliminary                                                                                              2

3C......... Interpretation...................................................................................... 2

3CA...... Nature of functions of magistrate....................................................... 2

3D......... Application of Part............................................................................. 2

Division 2—Search warrants                                                                                     2

3E.......... When search warrants can be issued................................................... 2

3F.......... The things that are authorised by a search warrant............................ 2

3G......... Availability of assistance and use of force in executing a warrant...... 2

3H......... Details of warrant to be given to occupier etc.................................... 2

3J.......... Specific powers available to constables executing warrant................. 2

3K......... Use of equipment to examine or process things................................. 2

3L.......... Use of electronic equipment at premises............................................ 2

3LA....... Person with knowledge of a computer or a computer system to assist access etc. 2

3LB....... Accessing data held on other premises—notification to occupier of that premises                2

3M........ Compensation for damage to electronic equipment............................ 2

3N......... Copies of seized things to be provided.............................................. 2

3P.......... Occupier entitled to be present during search.................................... 2

3Q......... Receipts for things seized under warrant........................................... 2

3R......... Warrants by telephone or other electronic means.............................. 2

3S.......... Restrictions on personal searches....................................................... 2

Division 3—Stopping and searching conveyances                                        2

3T......... Searches without warrant in emergency situations............................. 2

3U......... How a constable exercises a power under section 3T........................ 2

Division 4—Arrest and related matters                                                             2

3V......... Requirement to furnish name etc........................................................ 2

3W........ Power of arrest without warrant by constables................................. 2

3X......... Arrest of prisoner unlawfully at large................................................ 2

3Y......... Power of arrest without warrant of person on bail............................ 2

3Z......... Power of arrest without warrant by other persons............................ 2

3ZA...... Warrants for arrest.............................................................................. 2

3ZB....... Power to enter premises to arrest offender........................................ 2

3ZC....... Use of force in making arrest.............................................................. 2

3ZD...... Persons to be informed of grounds of arrest....................................... 2

3ZE....... Power to conduct a frisk search of an arrested person....................... 2

3ZF....... Power to conduct an ordinary search of an arrested person............... 2

3ZG...... Power to conduct search of arrested person’s premises.................... 2

3ZH...... Power to conduct an ordinary search or a strip search....................... 2

3ZI........ Rules for conduct of strip search........................................................ 2

3ZJ........ Taking fingerprints, recordings, samples of handwriting or photographs               2

3ZK...... Destruction of identification material................................................. 2

3ZL....... Offence of refusing to allow identification material to be taken......... 2

3ZM..... Identification parades......................................................................... 2

3ZN...... Identification parades for suspects under 18 etc................................ 2

3ZO...... Identification by means of photographs............................................. 2

3ZP....... Identification procedures where there is more than one suspect........ 2

3ZQ...... Descriptions....................................................................................... 2

Division 4A—Determining a person’s age                                                       2

Subdivision A—Preliminary                                                                                     2

3ZQA... Definitions.......................................................................................... 2

Subdivision B—Determination of age during investigation                                2

3ZQB.... Circumstances where investigating official may seek authority to carry out a prescribed procedure     2

3ZQC.... Obtaining of consents for the carrying out of a prescribed procedure 2

3ZQD... Withdrawal of consent........................................................................ 2

3ZQE.... Recording of giving of information about carrying out a prescribed procedure and relevant responses  2

Subdivision C—Determination of age during proceedings                                 2

3ZQF.... Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative     2

Subdivision D—Communication of orders by judges or magistrates                2

3ZQG... Orders made by judges or magistrates concerning carrying out of a prescribed procedure     2

Subdivision E—Matters relating to the carrying out of prescribed procedures  2

3ZQH... Appropriate medical or other standards to be applied....................... 2

3ZQI..... Reasonable and necessary force.......................................................... 2

Subdivision F—Disclosure and destruction of age determination information 2

3ZQJ..... Disclosure of age determination information...................................... 2

3ZQK... Destruction of age determination information.................................... 2

Division 5—General                                                                                                      2

3ZR....... Conduct of ordinary searches and frisk searches................................ 2

3ZS....... Announcement before entry............................................................... 2

3ZT....... Offence for making false statements in warrants................................ 2

3ZU...... Offences relating to telephone warrants............................................. 2

3ZV....... Retention of things which are seized.................................................. 2

3ZW...... Magistrate may permit a thing to be retained..................................... 2

3ZX...... Law relating to legal professional privilege not affected..................... 2

Part IA—General                                                                                                                    2

4AAA... Commonwealth laws conferring non-judicial functions and powers on officers     2

4AAB... Arrangements for conferral of non-judicial functions and powers..... 2

4A......... Meaning of certain words................................................................... 2

4AA...... Penalty units....................................................................................... 2

4AB...... Conversion of pecuniary penalties expressed in dollar amounts to penalty units  2

4B......... Pecuniary penalties—natural persons and bodies corporate.............. 2

4C......... Offences under 2 or more laws........................................................... 2

4D......... Penalties.............................................................................................. 2

4E.......... Pecuniary penalties............................................................................. 2

4F.......... Effect of alterations in penalties......................................................... 2

4G......... Indictable offences.............................................................................. 2

4H......... Summary offences.............................................................................. 2

4J.......... Certain indictable offences may be dealt with summarily.................. 2

4JA....... Some indictable offences punishable by fine only may be dealt with summarily   2

4K......... Continuing and multiple offences....................................................... 2

4L.......... Specified defences not to preclude other defences............................. 2

4M........ Children under 10............................................................................... 2

4N......... Children over 10 but under 14............................................................ 2

6............ Accessory after the fact...................................................................... 2

9............ Seizure and condemnation of forfeitable goods.................................. 2

9A......... Forfeited articles to be dealt with by Official Trustee....................... 2

9B......... Costs etc. payable to Official Trustee................................................ 2

13.......... Institution of proceedings in respect of offences............................... 2

15.......... Remand of defendant.......................................................................... 2

15AA.... Bail not to be granted in certain cases................................................. 2

15A....... Enforcement of fines etc..................................................................... 2

15B....... Time for commencement of prosecutions.......................................... 2

15C....... Form of indictments, informations and summonses........................... 2

15E........ Privilege of Parliament not affected.................................................... 2

15F........ Civil rights not affected...................................................................... 2

Part IAB—Controlled operations for obtaining evidence about Commonwealth offences               2

Division 1—Objects of Part                                                                                       2

15G....... Objects of Part.................................................................................... 2

15GA.... Concurrent operation of State and Territory laws............................. 2

Division 2—General                                                                                                      2

15H....... What is a controlled operation?.......................................................... 2

15HA.... Meaning of engage in conduct etc...................................................... 2

15HB.... What is a serious Commonwealth offence or a serious State offence that has a federal aspect?              2

15I......... Law enforcement officers etc. not liable for offences committed for purposes of authorised controlled operation............................................................................................................ 2

15IA...... Indemnification of law enforcement officers etc................................. 2

15IB...... Requirements that must be met for the purposes of sections 15I and 15IA           2

15IC...... Effect of sections 15I and 15IA on other laws relating to criminal investigation    2

15ID...... Compensation for loss or injury......................................................... 2

15J........ Application for certificate authorising a controlled operation—by whom and to whom made              2

15K....... Form and contents of application....................................................... 2

15L........ Urgent applications............................................................................ 2

15M...... On what grounds may a certificate authorising a controlled operation be given?    2

15N....... Form and contents of certificate......................................................... 2

15NA.... Variation of certificate........................................................................ 2

15O....... Surrender of certificate........................................................................ 2

15OA.... Termination of certificate................................................................... 2

15OB.... Expiry of certificate after 6 months or 3 months............................... 2

15OC.... Who are nominated Tribunal members?............................................. 2

15P........ Period for which certificate is in force................................................ 2

15PA..... Effect of being unaware etc. of variation, surrender, termination or expiry of certificate        2

15Q....... Chief Executive Officer of Customs to be notified of certain certificates                2

15R....... Quarterly reports to the Minister...................................................... 2

15S........ Contents of quarterly reports............................................................. 2

15T....... Minister to table report before Parliament......................................... 2

15U....... Evidentiary certificates....................................................................... 2

Division 2A—Monitoring of controlled operations by the Ombudsman               2

15UA.... Ombudsman to be notified of certain matters.................................... 2

15UB.... Inspection of records by Ombudsman............................................... 2

15UC.... Annual reports by Ombudsman......................................................... 2

15UD.... Ancillary matters concerning reports................................................. 2

Division 3—Controlled operations started before commencement of this Part               2

15V....... Interpretation...................................................................................... 2

15W...... Minister may give certificate about controlled operation that involved unlawful importation of narcotic goods by law enforcement officer............................................................................. 2

15X....... Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer............................................................................. 2

Part IAC—Assumed identities                                                                                        2

Division 1—Definitions etc.                                                                                      2

15XA.... Definitions etc.................................................................................... 2

Division 2—Effect of an assumed identity                                                         2

15XB.... Assumed identities may be acquired and used................................... 2

15XC.... Protection from criminal liability........................................................ 2

15XD.... Indemnification of approved officers and persons............................. 2

15XE..... Effect of being unaware of variation or revocation of authorisation... 2

15XF..... Documents authorising use of skill or qualification............................ 2

Division 3—Authorising the acquisition or use of assumed identities   2

15XG.... Commonwealth authorisations of the acquisition or use of assumed identities      2

15XH.... State or Territory authorisations of the acquisition or use of assumed identities   2

15XI...... Contents of an authorisation for an assumed identity........................ 2

15XJ..... When an authorisation is in force....................................................... 2

15XK.... Variation and revocation of authorisations......................................... 2

Division 4—Issuing and cancelling evidence of assumed identities   2

15XL..... Authorising person may request agencies and bodies to issue evidence of assumed identities etc.        2

15XM... Requesting Commonwealth agencies to issue evidence of assumed identities etc.  2

15XMA Requesting State agencies or Territory agencies to issue evidence of assumed identities etc. 2

15XN.... Requesting non-government bodies to issue evidence of assumed identities etc.    2

15XO.... Cancelling evidence of assumed identities etc..................................... 2

15XP..... Protection from criminal liability........................................................ 2

15XQ.... Indemnification of issuing agencies etc............................................... 2

Division 5—Offences relating to assumed identities                                  2

15XR.... Misuse of assumed identities............................................................. 2

15XS..... Disclosing information relating to assumed identities........................ 2

Division 6—Miscellaneous                                                                                        2

15XT.... Disclosing real identities during court proceedings etc....................... 2

15XU.... Keeping and auditing records of assumed identities........................... 2

15XUA. Matters to be reported....................................................................... 2

15XV.... Concurrent operation of State and Territory laws............................. 2

15XW... Regulations......................................................................................... 2

Part IAD—Protection of children in proceedings for sexual offences      2

Division 1—Introduction                                                                                            2

15Y....... Proceedings to which this Part applies............................................... 2

15YA.... Definitions.......................................................................................... 2

Division 2—Admissibility of evidence                                                                 2

15YB..... Evidence of sexual reputation............................................................. 2

15YC..... Evidence of sexual experience............................................................. 2

15YD.... Leave under this Division................................................................... 2

Division 3—Cross-examination                                                                              2

15YE..... Disallowing inappropriate or aggressive cross-examination............... 2

15YF..... Unrepresented defendants—cross-examination of child complainants 2

15YG.... Unrepresented defendants—cross-examination of child witnesses.... 2

15YH.... Represented defendants—cross-examination of child witnesses and child complainants       2

Division 4—Special facilities for child witnesses to give evidence      2

15YI...... Closed-circuit television..................................................................... 2

15YJ...... Giving evidence by closed-circuit television....................................... 2

15YK.... Viewing evidence given by closed-circuit television........................... 2

15YL..... Alternative arrangements for giving evidence..................................... 2

Division 5—Use of video recordings                                                                   2

15YM... Use of video recordings...................................................................... 2

15YN.... Admissibility of evidence given using video recordings..................... 2

Division 6—Miscellaneous                                                                                        2

15YO.... Adults accompanying child witnesses................................................ 2

15YP..... Exclusion of people from the courtroom............................................ 2

15YQ.... Warnings etc. not to be given about children’s evidence.................... 2

15YR..... Publication identifying child witnesses or child complainants........... 2

15YS..... General powers of a court.................................................................. 2

15YT..... Division 5 of Part IIIA unaffected...................................................... 2

Part IB—Sentencing, imprisonment and release of federal offenders     2

Division 1—Interpretation                                                                                         2

16.......... Interpretation...................................................................................... 2

Division 2—General sentencing principles                                                      2

16A....... Matters to which court to have regard when passing sentence etc.... 2

16B....... Court to have regard to other periods of imprisonment required to be served        2

16BA.... Taking other offences into account..................................................... 2

16C....... Fines................................................................................................... 2

16D....... No corporal punishment..................................................................... 2

Division 3—Sentences of imprisonment                                                            2

16E........ Commencement of sentences.............................................................. 2

16F........ Court to explain sentence................................................................... 2

17A....... Restriction on imposing sentences..................................................... 2

17B....... Restriction on imposing sentences for certain minor offences........... 2

18.......... Sentence of imprisonment.................................................................. 2

19.......... Cumulative, partly cumulative or concurrent sentences..................... 2

19A....... Detention of person in State or Territory prisons............................. 2

19AA.... Remissions and reductions of sentences............................................. 2

Division 4—The fixing of non-parole periods and the making of recognizance release orders               2

19AB.... When court must fix non-parole period or make a recognizance release order        2

19AC.... When court must fix a recognizance release order.............................. 2

19AD.... Persons already subject to a non-parole period.................................. 2

19AE..... Persons already subject to recognizance release order........................ 2

19AF..... Non-parole period or pre-release periods not to exceed remitted sentence             2

19AG.... Non-parole periods for sentences for certain offences....................... 2

19AH.... Failure to fix non-parole period or make recognizance release order.. 2

19AJ..... Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment............................................................................................................ 2

19AK.... Possible deportation no impediment to fixing non-parole period...... 2

Division 5—Conditional release on parole or licence                                 2

19AL..... Release on parole................................................................................ 2

19AM... Person not to be released on parole if still serving State or Territory sentence       2

19AN.... Parole order is subject to conditions................................................... 2

19AP..... Release on licence............................................................................... 2

19AQ.... When parole order or licence automatically revoked.......................... 2

19AR.... Fixing of non-parole period etc. where parole or licence automatically revoked     2

19AS..... Court to issue warrant of detention where person required to serve balance of sentence       2

19AT.... What happens when later conviction is quashed?.............................. 2

19AU.... Attorney-General may revoke parole order or licence....................... 2

19AV.... Arrest of person whose parole order or licence revoked by Attorney-General      2

19AW... Where person on parole or licence notified of revocation.................. 2

19AX.... Where person on parole or licence not notified of revocation............ 2

19AY.... Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied         2

19AZ.... Evidence before prescribed authority................................................. 2

19AZA. Disobedience of summons etc............................................................ 2

19AZB.. Can person be released on parole or licence if earlier parole order or licence revoked?           2

19AZC.. Effect of parole order and licence on sentence.................................... 2

19AZD. State and Territory laws providing for leave of absence, pre-release etc. to apply to federal offenders 2

19B....... Discharge of offenders without proceeding to conviction.................. 2

20.......... Conditional release of offenders after conviction............................... 2

20A....... Failure to comply with condition of discharge or release................... 2

20AA.... Power to discharge or vary conditions of recognizance...................... 2

20AB.... Additional sentencing alternatives...................................................... 2

20AC.... Failure to comply with sentence passed, or order made, under subsection 20AB(1)             2

Division 6—Unfitness to be tried                                                                           2

20B....... Consequences of preliminary finding that person unfit to be tried.... 2

20BA.... Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months 2

20BB..... Persons found by a court to be likely to be fit within 12 months...... 2

20BC..... Persons found by a court not to be likely to be fit within 12 months 2

20BD.... Review by Attorney-General............................................................. 2

20BE..... Attorney-General may order release.................................................. 2

20BF..... Release order may be revoked............................................................ 2

20BG.... Attorney-General to review detention of persons taken back into detention         2

20BH.... State or Territory mental health authorities to be notified of certain releases         2

Division 7—Acquittal because of mental illness                                            2

20BJ...... Acquittal where person mentally ill................................................... 2

20BK.... Review by Attorney-General............................................................. 2

20BL..... Attorney-General may order release.................................................. 2

20BM... Release order may be revoked............................................................ 2

20BN.... Attorney-General to review detention of persons taken back into detention         2

20BP..... State or Territory authorities to be notified of certain releases.......... 2

Division 8—Summary disposition of persons suffering from mental illness or intellectual disability    2

20BQ.... Person suffering from mental illness or intellectual disability............ 2

20BR..... Means by which court may be informed............................................ 2

Division 9—Sentencing alternatives for persons suffering from mental illness or intellectual disability                                                                                                                        2

20BS..... Hospital orders................................................................................... 2

20BT..... Lesser periods of imprisonment fixed under hospital orders............. 2

20BU.... Discharge of hospital orders............................................................... 2

20BV..... Psychiatric probation orders.............................................................. 2

20BW.... Breach of psychiatric probation orders.............................................. 2

20BX.... Enforcement of psychiatric probation orders..................................... 2

20BY..... Program probation orders................................................................... 2

Division 10—Miscellaneous                                                                                     2

20C....... Offences by children and young persons........................................... 2

21B....... Reparation for offences...................................................................... 2

21D....... Prerogative of mercy and other Commonwealth laws unaffected...... 2

21E........ Director of Public Prosecutions may appeal against reductions where promised co-operation with law enforcement agencies refused.................................................................................. 2

21F........ Prescribed authorities and parole officers........................................... 2

22.......... Conditions etc. that a court may impose on certain offenders........... 2

22A....... State orders relating to passports....................................................... 2

Part IC—Investigation of Commonwealth offences                                            2

Division 1—Introduction                                                                                            2

23.......... Outline of this Part............................................................................. 2

23A....... Application of Part............................................................................. 2

23AA.... How this Part applies to the Antarctic Territories............................ 2

23B....... Definitions.......................................................................................... 2

Division 2—Powers of detention                                                                            2

23C....... Period of arrest if arrested for non-terrorism offence......................... 2

23CA.... Period of arrest if arrested for terrorism offence................................ 2

23CB..... Specifying time during which suspension or delay of questioning may be disregarded          2

23D....... Extension of investigation period if arrested for non-terrorism offence  2

23DA.... Extension of investigation period if arrested for terrorism offence.... 2

23E........ Applications by telephone etc........................................................... 2

Division 3—Obligations of investigating officials                                          2

23F........ Cautioning persons who are under arrest or protected suspects........ 2

23G....... Right to communicate with friend, relative and legal practitioner...... 2

23H....... Aboriginal persons and Torres Strait Islanders.................................. 2

23J........ Lists of interview friends and interpreters......................................... 2

23K....... Persons under 18................................................................................ 2

23L........ Exceptions.......................................................................................... 2

23M...... Providing information relating to persons who are under arrest or protected suspects          2

23N....... Right to interpreter............................................................................. 2

23P........ Right of non-Australian nationals to communicate with consular office 2

23Q....... Treatment of persons under arrest..................................................... 2

23S........ Right to remain silent etc. not affected............................................... 2

23T....... Acts authorised under other laws....................................................... 2

23U....... Tape recording of information required to be given to person under arrest             2

23V....... Tape recording of confessions and admissions................................... 2

23W...... Proof of belief..................................................................................... 2

Part ID—Forensic procedures                                                                                         2

Division 1—Explanation of expressions used                                                 2

23WA... Definitions.......................................................................................... 2

23WB.... Interview friends................................................................................. 2

Division 2—Authority and time limits for forensic procedures on suspects: summary of rules              2

23WC.... How forensic procedures may be authorised in different circumstances 2

23WCA. Time limits for carrying out forensic procedures............................... 2

Division 3—Forensic procedures on suspect by consent                         2

23WD... Forensic procedure may be carried out with informed consent of suspect             2

23WE.... People who cannot consent to forensic procedures........................... 2

23WF.... Informed consent to forensic procedures—general............................ 2

23WG... Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders   2

23WH... Constable may request suspect to consent to forensic procedure..... 2

23WI..... Matters to be considered by constable before requesting consent to forensic procedure       2

23WJ..... Matters that suspect must be informed of before giving consent...... 2

23WK... Withdrawal of consent........................................................................ 2

23WL.... Recording of giving of information and suspect’s responses............. 2

23WLA. Time for carrying out forensic procedure—suspect not in custody.. 2


An Act relating to Offences against the Commonwealth

  

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Crimes Act 1914.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

Aboriginal person means a person of the Aboriginal race of Australia.

ACC means the Australian Crime Commission.

ACC authorising officer has the meaning given in subsection 15J(4).

AFP authorising officer has the meaning given in subsection 15J(3).

appropriate authorising officer, in relation to a certificate given under section 15M, means:

                     (a)  if the certificate is given by an AFP authorising officer—any AFP authorising officer; or

                     (b)  if the certificate is given by an ACC authorising officer—any ACC authorising officer.

associated offence means:

                     (a)  in relation to an offence against section 233B of the Customs Act 1901—an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or

                     (b)  in relation to an offence against section 10, 11, 12, 13 or 14 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990—an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or

                     (c)  in relation to an offence against a law of a State or Territory—an offence:

                              (i)  under a provision of a law of that State or Territory that corresponds to a provision of Part 2.4 of the Criminal Code; and

                             (ii)  that relates to the offence.

Australian law enforcement officer means a law enforcement officer other than a member of a police force, or other law enforcement agency, of a foreign country.

authorising officer, in relation to a controlled operation, has the meaning given in section 15J.

Commissioner means the Commissioner of the Australian Federal Police.

Commonwealth offence, except in Part IC, means an offence against a law of the Commonwealth.

Commonwealth officer means a person holding office under, or employed by, the Commonwealth, and includes:

                     (a)  a person appointed or engaged under the Public Service Act 1999;

                    (aa)  a person permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the Service of a public authority under the Commonwealth;

                     (b)  the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); and

                     (c)  for the purposes of section 70, a person who, although not holding office under, or employed by, the Commonwealth, a Territory or a public authority under the Commonwealth, performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth; and

                     (d)  for the purposes of section 70:

                              (i)  a person who is an employee of the Australian Postal Corporation;

                             (ii)  a person who performs services for or on behalf of the Australian Postal Corporation; and

                            (iii)  an employee of a person who performs services for or on behalf of the Australian Postal Corporation.

constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

controlled operation has the meaning given by section 15H.

conveyance includes an aircraft, vehicle or vessel.

dentist means a dental practitioner within the meaning of the Health Insurance Act 1973.

Deputy Commissioner means a Deputy Commissioner of the Australian Federal Police.

federal aspect, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 3AA(1).

Note:          This subsection defines State to include the Northern Territory.

have in possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

illicit goods means goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

law enforcement officer means any of the following:

                     (a)  the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);

                     (b)  a member of the police force of a State or Territory;

                     (c)  a member of the staff of the ACC;

                     (d)  an officer of the Australian Customs Service;

                     (e)  a member of a police force, or other law enforcement agency, of a foreign country.

major controlled operation has the meaning given in subsection 15J(2A).

medical practitioner has the same meaning as in the Health Insurance Act 1973.

member of the staff of the ACC has the same meaning as in the Australian Crime Commission Act 2002.

narcotic goods has the same meaning as in the Customs Act 1901.

nominated Tribunal member has the meaning given in section 15OC.

nurse means a registered nurse within the meaning of the Health Insurance Act 1973.

Official Trustee means the Official Trustee in Bankruptcy.

person targeted, in relation to a controlled operation, means the person:

                     (a)  about whom it is intended to obtain evidence; or

                     (b)  about whom evidence is being, or has been, obtained;

through the operation.

property includes money and every thing, animate or inanimate, capable of being the subject of ownership.

public authority under the Commonwealth means any authority or body constituted by or under a law of the Commonwealth or of a Territory.

quarter means a period of 3 months ending on 31 January, 30 April, 31 July or 31 October.

Queen’s dominions includes a British protectorate and a British protected State.

senior executive AFP employee has the same meaning as in the Australian Federal Police Act 1979.

State includes the Northern Territory.

State offence means an offence against a law of a State or the Australian Capital Territory.

Territory does not include the Northern Territory.

terrorism offence means:

                     (a)  an offence against Division 72 of the Criminal Code; or

                     (b)  an offence against Part 5.3 of the Criminal Code.

thing relevant to an indictable offence means:

                     (a)  either of the following:

                              (i)  anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;

                             (ii)  anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or

                     (b)  anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

                     (c)  anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.

thing relevant to a summary offence means:

                     (a)  either of the following:

                              (i)  anything with respect to which a summary offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;

                             (ii)  anything with respect to which a State offence that has a federal aspect, and that is a summary or simple offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or

                     (b)  anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

                     (c)  anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.

Torres Strait Islander means a descendent of an indigenous inhabitant of the Torres Strait Islands.

             (2)  In this Act, a reference to a fine includes a reference:

                     (a)  to a pecuniary penalty other than a pecuniary penalty imposed:

                              (i)  under Division 3 of Part XIII of the Customs Act 1901; or

                             (ii)  by a pecuniary penalty order or a literary proceeds order made under the Proceeds of Crime Act 2002; or

                           (iia)  by a pecuniary penalty order made under the Proceeds of Crime Act 1987; or

                            (iii)  by a superannuation order made under the Australian Federal Police Act 1979; or

                            (iv)  by a superannuation order made under the Crimes (Superannuation Benefits) Act 1989; or

                     (b)  to costs or other amounts ordered to be paid by offenders.

3AA  State offences that have a federal aspect

Object

          (1A)  The object of this section is to identify State offences that have a federal aspect because:

                     (a)  they potentially fall within Commonwealth legislative power because of the elements of the State offence; or

                     (b)  they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or

                     (c)  the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.

State offences that have a federal aspect

             (1)  For the purposes of this Act, a State offence has a federal aspect if, and only if:

                     (a)  both:

                              (i)  the State offence is not an ancillary offence; and

                             (ii)  assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

                     (b)  both:

                              (i)  the State offence is an ancillary offence that relates to a particular primary offence; and

                             (ii)  assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

                     (c)  assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or

                     (d)  both:

                              (i)  the Australian Federal Police is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and

                             (ii)  if the Australian Federal Police is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).

Specificity of acts or omissions

             (2)  For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (1)(c)

             (3)  A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:

                     (a)  affects the interests of:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                            (iii)  a constitutional corporation; or

                     (b)  was engaged in by a constitutional corporation; or

                     (c)  was engaged in in a Commonwealth place; or

                     (d)  involved the use of a postal service or other like service; or

                     (e)  involved an electronic communication; or

                      (f)  involved trade or commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

                            (iii)  within a Territory, between a State and a Territory or between 2 Territories; or

                     (g)  involved:

                              (i)  banking (other than State banking not extending beyond the limits of the State concerned); or

                             (ii)  insurance (other than State insurance not extending beyond the limits of the State concerned); or

                     (h)  relates to a matter outside Australia; or

                      (i)  relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or

                      (j)  relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

             (4)  Subsection (3) does not limit paragraph (1)(c).

Definitions

             (5)  In this section:

ancillary offence, in relation to an offence (the primary offence), means:

                     (a)  an offence of conspiring to commit the primary offence; or

                     (b)  an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

                     (c)  an offence of attempting to commit the primary offence.

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

conduct has the same meaning as in the Criminal Code.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

electronic communication means a communication of information:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

                     (d)  whether in the form of visual images (animated or otherwise); or

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

engage in conduct has the same meaning as in the Criminal Code.

State includes the Australian Capital Territory and the Northern Territory.

State offence means an offence against a law of a State.

Note:          Subsection 3(1) defines State to include the Northern Territory.

3A  Operation of Act

                   This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.

3B  Arrangements with States, Australian Capital Territory, Northern Territory and Norfolk Island [see Note 2]

             (1)  The Governor-General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island for:

                     (a)  officers of the State or Territory to exercise powers and perform functions; and

                     (b)  facilities and procedures of the State or Territory to be made available;

in relation to the carrying out or enforcement under this Act of orders made under this Act or another Act.

             (2)  In sections, 15A and 20AB:

                     (a)  a reference to a participating State is a reference to a State in relation to which an arrangement is in force under subsection (1) of this section; and

                     (b)  a reference to a participating Territory:

                              (i)  is a reference to a Territory other than the Australian Capital Territory, the Northern Territory or Norfolk Island; and

                             (ii)  if an arrangement is in force under subsection (1) of this section in relation to the Australian Capital Territory—includes a reference to the Australian Capital Territory; and

                            (iii)  if an arrangement is in force under subsection (1) of this section in relation to the Northern Territory— includes a reference to the Northern Territory; and

                            (iv)  if an arrangement is in force under subsection (1) of this section in relation to Norfolk Island—includes a reference to Norfolk Island.

             (3)  In this section:

order includes a sentence.

State does not include the Australian Capital Territory or the Northern Territory.

3BA  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part IAASearch warrants and powers of arrest

Division 1Preliminary

3C  Interpretation

             (1)  In this Part, unless the contrary intention appears:

constable assisting, in relation to a warrant, means:

                     (a)  a person who is a constable and who is assisting in executing the warrant; or

                     (b)  a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant.

data includes:

                     (a)  information in any form; or

                     (b)  any program (or part of a program).

data held in a computer includes:

                     (a)  data held in any removable data storage device for the time being held in a computer; or

                     (b)  data held in a data storage device on a computer network of which the computer forms a part.

data storage device means a thing containing, or designed to contain, data for use by a computer.

evidential material means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.

executing officer, in relation to a warrant, means:

                     (a)  the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or

                     (b)  if that constable does not intend to be present at the execution of the warrant—another constable whose name has been written in the warrant by the constable so named; or

                     (c)  another constable whose name has been written in the warrant by the constable last named in the warrant.

frisk search means:

                     (a)  a search of a person conducted by quickly running the hands over the person’s outer garments; and

                     (b)  an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:

                     (a)  a magistrate; or

                     (b)  a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.

magistrate, in sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZW, has a meaning affected by section 3CA.

offence means:

                     (a)  an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or

                     (b)  an offence against a law of a Territory; or

                     (c)  a State offence that has a federal aspect.

ordinary search means a search of a person or of articles in the possession of a person that may include:

                     (a)  requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

                     (b)  an examination of those items.

police station includes:

                     (a)  a police station of a State or Territory; and

                     (b)  a building occupied by the Australian Federal Police.

premises includes a place and a conveyance.

recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.

seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

strip search means a search of a person or of articles in the possession of a person that may include:

                     (a)  requiring the person to remove all of his or her garments; and

                     (b)  an examination of the person’s body (but not of the person’s body cavities) and of those garments.

warrant means a warrant under this Part.

warrant premises means premises in relation to which a warrant is in force.

             (2)  A person referred to in paragraph (b) of the definition of constable assisting in subsection (1) must not take part in searching or arresting a person.

3CA  Nature of functions of magistrate

             (1)  A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

             (2)  Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW has effect only by virtue of this Act and is not to be taken by implication to be made by a court.

             (3)  A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).

             (4)  The Governor-General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZW.

3D  Application of Part

             (1)  This Part is not intended to limit or exclude the operation of another law of the Commonwealth relating to:

                     (a)  the search of persons or premises; or

                     (b)  arrest and related matters; or

                     (c)  the stopping, detaining or searching of conveyances; or

                     (d)  the seizure of things.

             (2)  To avoid any doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

             (4)  This Part is not intended to limit or exclude the operation of a law of a Territory relating to:

                     (a)  the search of persons or premises; or

                     (b)  arrest and related matters; or

                     (c)  the stopping, detaining or searching of conveyances; or

                     (d)  the seizure of things;

in relation to offences against a law of that Territory.

             (5)  This Part does not apply to the exercise by a constable of powers under the Defence Force Discipline Act 1982.

             (6)  The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.

Note 1:       Subsection 3(1) defines State to include the Northern Territory.

Note 2:       Section 3AA has the effect that an offence against the law of the Australian Capital Territory is a State offence that has a federal aspect.


 

Division 2Search warrants

3E  When search warrants can be issued

             (1)  An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

             (2)  An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

             (3)  If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.

             (4)  If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.

             (5)  If an issuing officer issues a warrant, the officer is to state in the warrant:

                     (a)  the offence to which the warrant relates; and

                     (b)  a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

                     (c)  the kinds of evidential material that are to be searched for under the warrant; and

                     (d)  the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

                     (e)  the time at which the warrant expires (see subsection (5A)); and

                      (f)  whether the warrant may be executed at any time or only during particular hours.

          (5A)  The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (6)  The issuing officer is also to state, in a warrant in relation to premises:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

             (7)  The issuing officer is also to state, in a warrant in relation to a person:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  the kind of search of a person that the warrant authorises.

             (8)  Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.

             (9)  If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if:

                     (a)  subsections (1) and (2) referred to 48 hours rather than 72 hours; and

                     (b)  paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

           (10)  An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.

           (11)  An issuing officer in a State or internal Territory may:

                     (a)  issue a warrant in relation to premises or a person in that State or Territory; or

                     (b)  issue a warrant in relation to premises or a person in an external Territory; or

                     (c)  issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

                     (d)  issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.

3F  The things that are authorised by a search warrant

             (1)  A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:

                     (a)  to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and

                     (b)  to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and

                     (c)  to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and

                     (d)  to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  evidential material in relation to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

                     (e)  to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and

                      (f)  if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

             (2)  A warrant that is in force in relation to a person authorises the executing officer or a constable assisting:

                     (a)  to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and

                     (b)  to:

                              (i)  seize things of that kind; or

                             (ii)  record fingerprints from things; or

                            (iii)  to take forensic samples from things;

                            found in the course of the search; and

                     (c)  to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

                     (d)  to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items.

             (3)  If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

             (4)  If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

             (5)  If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.

3G  Availability of assistance and use of force in executing a warrant

                   In executing a warrant:

                     (a)  the executing officer may obtain such assistance; and

                     (b)  the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and

                     (c)  a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

3H  Details of warrant to be given to occupier etc.

             (1)  If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.

             (2)  If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.

             (3)  If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant.

             (4)  The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.

             (5)  The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.

3J  Specific powers available to constables executing warrant

             (1)  In executing a warrant in relation to premises, the executing officer or a constable assisting may:

                     (a)  for a purpose incidental to the execution of the warrant; or

                     (b)  if the occupier of the premises consents in writing;

take photographs (including video recordings) of the premises or of things at the premises.

             (2)  If a warrant in relation to premises is being executed, the executing officer and the constables assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:

                     (a)  for not more than one hour; or

                     (b)  for a longer period if the occupier of the premises consents in writing.

             (3)  If:

                     (a)  the execution of a warrant is stopped by an order of a court; and

                     (b)  the order is later revoked or reversed on appeal; and

                     (c)  the warrant is still in force;

the execution of the warrant may be completed.

3K  Use of equipment to examine or process things

             (1)  The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

                     (a)  both of the following apply:

                              (i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

                     (b)  the occupier of the premises consents in writing.

             (3)  If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:

                     (a)  inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

                     (b)  allow the occupier or his or her representative to be present during the examination or processing.

          (3A)  The thing may be moved to another place for examination or processing for no longer than 72 hours.

          (3B)  An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

          (3C)  The executing officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

             (4)  The executing officer or a constable assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or constable believes on reasonable grounds that:

                     (a)  the equipment is suitable for the examination or processing; and

                     (b)  the examination or processing can be carried out without damage to the equipment or the thing.

3L  Use of electronic equipment at premises

             (1)  The executing officer or a constable assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.

          (1A)  If the executing officer or constable assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

          (1B)  If:

                     (a)  the executing officer or constable assisting takes the device from the premises; and

                     (b)  the Commissioner is satisfied that the data is not required (or is no longer required) for:

                              (i)  investigating an offence against the law of the Commonwealth, a State or a Territory; or

                             (ii)  judicial proceedings or administrative review proceedings; or

                            (iii)  investigating or resolving a complaint under the Complaints (Australian Federal Police) Act 1981 or the Privacy Act 1988;

the Commissioner must arrange for:

                     (c)  the removal of the data from any device in the control of the Australian Federal Police; and

                     (d)  the destruction of any other reproduction of the data in the control of the Australian Federal Police.

             (2)  If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

                     (a)  seize the equipment and any disk, tape or other associated device; or

                     (b)  if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.

             (3)  A constable may seize equipment under paragraph (2)(a) only if:

                     (a)  it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); or

                     (b)  possession by the occupier of the equipment could constitute an offence.

             (4)  If the executing officer or a constable assisting believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment at the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

             (5)  The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

             (6)  The equipment may be secured:

                     (a)  for a period not exceeding 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever happens first.

             (7)  If the executing officer or a constable assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the issuing officer for an extension of that period.

             (8)  The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

             (9)  The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.

3LA  Person with knowledge of a computer or a computer system to assist access etc.

             (1)  The executing officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:

                     (a)  access data held in, or accessible from, a computer that is on warrant premises;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

             (2)  The magistrate may grant the order if the magistrate is satisfied that:

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  reasonably suspected of having committed the offence stated in the relevant warrant; or

                             (ii)  the owner or lessee of the computer; or

                            (iii)  an employee of the owner or lessee of the computer; and

                     (c)  the specified person has relevant knowledge of:

                              (i)  the computer or a computer network of which the computer forms a part; or

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  6 months imprisonment.

3LB  Accessing data held on other premises—notification to occupier of that premises

             (1)  If:

                     (a)  data that is held on premises other than the warrant premises is accessed under subsection 3L(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the executing officer must:

                     (c)  do so as soon as practicable; and

                     (d)  if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 3L(1A) or (2)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the executing officer.

3M  Compensation for damage to electronic equipment

             (1)  If:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 3K or 3L; and

                     (b)  the damage was caused as a result of:

                              (i)  insufficient care being exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care being exercised by the person operating the equipment;

compensation for the damage is payable to the owner of the equipment.

             (2)  Compensation is payable out of money appropriated by the Parliament for the purpose.

             (3)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

3N  Copies of seized things to be provided

             (1)  Subject to subsection (2), if a constable seizes, under a warrant relating to premises:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a storage device the information in which can be readily copied;

the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

             (2)  Subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b); or

                     (b)  possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

3P  Occupier entitled to be present during search

             (1)  If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted.

             (2)  The right to observe the search being conducted ceases if the person impedes the search.

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

3Q  Receipts for things seized under warrant

             (1)  If a thing is seized under a warrant or moved under subsection 3K(2), the executing officer or a constable assisting must provide a receipt for the thing.

             (2)  If 2 or more things are seized or moved, they may be covered in the one receipt.

3R  Warrants by telephone or other electronic means

             (1)  A constable may make an application to an issuing officer for a warrant by telephone, telex, facsimile or other electronic means:

                     (a)  in an urgent case; or

                     (b)  if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  The issuing officer:

                     (a)  may require communication by voice to the extent that it is practicable in the circumstances; and

                     (b)  may make a recording of the whole or any part of any such communication by voice.

             (3)  An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.

             (4)  If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:

                     (a)  a warrant in the terms of the application should be issued urgently; or

                     (b)  the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the issuing officer may complete and sign the same form of warrant that would be issued under section 3E.

             (5)  If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, facsimile or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

             (6)  The applicant must then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.

             (7)  The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.

             (8)  The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.

             (9)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and

                     (b)  the form of warrant signed by the issuing officer is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

3S  Restrictions on personal searches

                   A warrant can not authorise a strip search or a search of a person’s body cavities.


 

Division 3Stopping and searching conveyances

3T  Searches without warrant in emergency situations

             (1)  This section applies if a constable suspects, on reasonable grounds, that:

                     (a)  a thing relevant to an indictable offence is in or on a conveyance; and

                     (b)  it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

                     (c)  it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.

             (2)  The constable may:

                     (a)  stop and detain the conveyance; and

                     (b)  search the conveyance and any container in or on the conveyance, for the thing; and

                     (c)  seize the thing if he or she finds it there.

             (3)  If, in the course of searching for the thing, the constable finds another thing relevant to an indictable offence or a thing relevant to a summary offence, the constable may seize that thing if he or she suspects, on reasonable grounds, that:

                     (a)  it is necessary to seize it in order to prevent its concealment, loss or destruction; and

                     (b)  it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.

             (4)  The constable must exercise his or her powers subject to section 3U.

3U  How a constable exercises a power under section 3T

                   When a constable exercises a power under section 3T in relation to a conveyance, he or she:

                     (a)  may use such assistance as is necessary; and

                     (b)  must search the conveyance in a public place or in some other place to which members of the public have ready access; and

                     (c)  must not detain the conveyance for longer than is necessary and reasonable to search it and any container found in or on the conveyance; and

                     (d)  may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance or any container found in or on the conveyance by forcing open a part of the conveyance or container unless:

                              (i)  the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or container; or

                             (ii)  it is not possible to give that person such an opportunity.


 

Division 4Arrest and related matters

3V  Requirement to furnish name etc.

             (1)  If a constable believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the constable may be able to assist the constable in inquiries in relation to an indictable offence that the constable has reason to believe has been or may have been committed, the constable may request the person to provide his or her name or address, or name and address, to the constable.

             (2)  If a constable:

                     (a)  makes a request of a person under subsection (1); and

                     (b)  informs the person of the reason for the request; and

                     (c)  complies with subsection (3) if the person makes a request under that subsection;

the person must not:

                     (d)  refuse or fail to comply with the request; or

                     (e)  give a name or address that is false in a material particular.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

             (3)  If a constable who makes a request of a person under subsection (1) is requested by the person to provide to the person:

                     (a)  his or her name or the address of his or her place of duty; or

                     (b)  his or her name and that address; or

                     (c)  if he or she is not in uniform and it is practicable for the constable to provide the evidence—evidence that he or she is a constable;

the constable must not:

                     (d)  refuse or fail to comply with the request; or

                     (e)  give a name or address that is false in a material particular.

Penalty:  5 penalty units.

3W  Power of arrest without warrant by constables

             (1)  A constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that:

                     (a)  the person has committed or is committing the offence; and

                     (b)  proceedings by summons against the person would not achieve one or more of the following purposes:

                              (i)  ensuring the appearance of the person before a court in respect of the offence;

                             (ii)  preventing a repetition or continuation of the offence or the commission of another offence;

                            (iii)  preventing the concealment, loss or destruction of evidence relating to the offence;

                            (iv)  preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;

                             (v)  preventing the fabrication of evidence in respect of the offence;

                            (vi)  preserving the safety or welfare of the person.

             (2)  If:

                     (a)  a person has been arrested for an offence under subsection (1); and

                     (b)  before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds:

                              (i)  that the person committed the offence; or

                             (ii)  that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);

the person must be released.

             (3)  A constable may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.

3X  Arrest of prisoner unlawfully at large

             (1)  A constable may, without warrant, arrest a person whom the constable believes on reasonable grounds to be a prisoner unlawfully at large.

             (2)  The constable must, as soon as practicable, take the person before a Magistrate.

             (3)  If the Magistrate is satisfied that the person is a prisoner unlawfully at large, the Magistrate may issue a warrant:

                     (a)  authorising any constable to convey the person to a prison or other place of detention specified in the warrant; and

                     (b)  directing that the person, having been conveyed to that place in accordance with the warrant, be detained there to undergo the term of imprisonment or other detention that the person is required by law to undergo.

             (4)  In this section:

prisoner unlawfully at large means a person who is at large (otherwise than because the person has escaped from lawful custody) at a time when the person is required by law to be detained under a provision of a law of the Commonwealth, including Divisions 6 to 9, inclusive, of Part IB.

3Y  Power of arrest without warrant of person on bail

             (1)  A constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is.

             (2)  Subject to subsection (3), if a constable arrests a person under subsection (1), the constable must cause the person to be brought before a magistrate as soon as is practicable.

             (3)  If a constable arrests a person under subsection (1) in the State or Territory in which the condition was imposed, the person is to be dealt with according to relevant laws of that State or Territory applied by section 68 of the Judiciary Act 1903.

             (4)  When a person arrested under subsection (1) in a State or Territory other than the one in which the condition was imposed is brought before a magistrate in the State or Territory in which the arrest took place, the court may:

                     (a)  release the person unconditionally; or

                     (b)  admit the person to bail on such recognisances as the court thinks fit to appear again before the same court at such time as the court orders; or

                     (c)  remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from the State or Territory in which the condition was imposed.

             (5)  A release referred to in paragraph (4)(a) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.

3Z  Power of arrest without warrant by other persons

             (1)  A person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that:

                     (a)  the other person is committing or has just committed an indictable offence; and

                     (b)  proceedings by summons against the other person would not achieve one or more of the purposes referred to in paragraph 3W(1)(b).

             (2)  A person who arrests another person under subsection (1) must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.

3ZA  Warrants for arrest

             (1)  An issuing officer must not, under a law of a State or Territory applied by section 68 of the Judiciary Act 1903, issue a warrant for the arrest of a person for an offence as a result of an information laid before the officer unless:

                     (a)  the information is on oath; and

                     (b)  except where the issuing officer is informed that the warrant is sought for the purpose of making a request for the extradition of a person from a foreign country—the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including:

                              (i)  the reasons why it is believed that the person committed the offence; and

                             (ii)  the reasons why it is claimed that proceedings by summons would not achieve one or more of the purposes set out in paragraph 3W(1)(b); and

                     (c)  if the issuing officer has requested further information concerning the reasons for which the issue of the warrant is sought—that information has been provided to the officer; and

                     (d)  the issuing officer is satisfied that there are reasonable grounds for the issue of the warrant.

             (2)  If an issuing officer issues such a warrant, the officer must write on the affidavit which of the reasons specified in the affidavit, and any other reasons, he or she has relied on as justifying the issue of the warrant.

3ZB  Power to enter premises to arrest offender

             (1)  Subject to subsection (3), if:

                     (a)  a constable has, under a warrant, power to arrest a person for an offence; and

                     (b)  the constable believes on reasonable grounds that the person is on any premises;

the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.

             (2)  Subject to subsection (3), if:

                     (a)  a constable may, under section 3W, arrest a person without warrant for an offence; and

                     (b)  the offence is an indictable offence; and

                     (c)  the constable believes on reasonable grounds that the person is on any premises;

the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.

             (3)  A constable must not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the constable believes on reasonable grounds that:

                     (a)  it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or

                     (b)  it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.

             (4)  In subsection (3):

dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

3ZC  Use of force in making arrest

             (1)  A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.

             (2)  Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence:

                     (a)  do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); or

                     (b)  if the person is attempting to escape arrest by fleeing—do such a thing unless:

                              (i)  the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); and

                             (ii)  the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.

3ZD  Persons to be informed of grounds of arrest

             (1)  A person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.

             (2)  It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.

             (3)  Subsection (1) does not apply to the arrest of the other person if:

                     (a)  the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or

                     (b)  the other person’s actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.

3ZE  Power to conduct a frisk search of an arrested person

                   A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:

                     (a)  conduct a frisk search of the person at or soon after the time of arrest; and

                     (b)  seize any seizable items found as a result of the search.

3ZF  Power to conduct an ordinary search of an arrested person

                   A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that the person is carrying:

                     (a)  evidential material in relation to that or another offence; or

                     (b)  a seizable item;

conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.

3ZG  Power to conduct search of arrested person’s premises

                   A constable who arrests a person at premises for an offence, or who is present at such an arrest, may seize things in plain view at those premises that the constable believes on reasonable grounds to be:

                     (a)  evidential material in relation to that or another offence; or

                     (b)  seizable items.

3ZH  Power to conduct an ordinary search or a strip search

             (1)  If a person who has been arrested for an offence is brought to a police station, a constable may:

                     (a)  if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or

                     (b)  subject to this section, conduct a strip search of the person.

             (2)  A strip search may be conducted if:

                     (a)  a constable suspects on reasonable grounds that the person has in his or her possession:

                              (i)  a seizable item; or

                             (ii)  evidential material (other than forensic material as defined in Part ID) in relation to that or another offence; and

                     (b)  the constable suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item or evidential material; and

                     (c)  a constable of the rank of superintendent or higher has approved the conduct of the search.

          (2A)  If:

                     (a)  in the course of carrying out a strip search, the constable comes to believe on reasonable grounds that the carrying out of a forensic procedure would be likely to produce evidence relating to the offence for which the person has been arrested or any other offence; and

                     (b)  Part ID provides for the carrying out of such a forensic procedure;

the forensic procedure must not be carried out except in accordance with Part ID.

          (2B)  The conducting of a strip search may include taking photographs of evidential material found on the person, whether or not taking photographs is a forensic procedure provided for by Part ID.

             (3)  Subject to section 3ZI, a strip search may also be conducted if the person consents in writing.

          (3A)  Subsection (3) does not authorise the conduct of a strip search for the purpose of obtaining forensic material as defined in Part ID. Such a search must not be conducted except in accordance with Part ID.

             (4)  Subject to section 3ZI, a strip search may be conducted in the presence of a medical practitioner who may assist in the search.

             (5)  The approval may be obtained by telephone, telex, facsimile or other electronic means.

             (6)  A constable who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.

             (7)  Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).

             (8)  Any item of a kind referred to in paragraph (2)(a) that is found during a strip search may be seized.

3ZI  Rules for conduct of strip search

             (1)  A strip search:

                     (a)  must be conducted in a private area; and

                     (b)  must be conducted by a constable who is of the same sex as the person being searched; and

                     (c)  subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and

                     (d)  must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and

                     (e)  must not be conducted on a person who is under 10; and

                      (f)  if the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs:

                              (i)  may only be conducted if the person has been arrested and charged or if a magistrate orders that it be conducted; and

                             (ii)  must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person; and

                     (g)  must not involve a search of a person’s body cavities; and

                     (h)  must not involve the removal of more garments than the constable conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the offence; and

                      (i)  must not involve more visual inspection than the constable believes on reasonable grounds to be necessary to establish the person’s involvement in the offence.

             (2)  In deciding whether to make an order referred to in paragraph (1)(f), the magistrate must have regard to:

                     (a)  the seriousness of the offence; and

                     (b)  the age or any disability of the person; and

                     (c)  such other matters as the magistrate thinks fit.

             (3)  A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.

             (4)  Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.

             (5)  If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.

3ZJ  Taking fingerprints, recordings, samples of handwriting or photographs

             (1)  In this section and in sections 3ZK and 3ZL:

identification material, in relation to a person, means prints of the person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V.

             (2)  A constable must not:

                     (a)  take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or

                     (b)  require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.

             (3)  If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:

                     (a)  the person consents in writing; or

                     (b)  the constable believes on reasonable grounds that it is necessary to do so to:

                              (i)  establish who the person is; or

                             (ii)  identify the person as the person who committed the offence; or

                            (iii)  provide evidence of, or relating to, the offence; or

                     (c)  the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.

             (4)  A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

             (5)  Subject to subsection (9), a constable must not take identification material from a person who is under 10.

             (6)  Subject to this section, a constable must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from a suspect who:

                     (a)  is at least 10 but under 18, or is incapable of managing his or her affairs; and

                     (b)  has not been arrested and charged;

unless a magistrate orders that the material be taken.

          (6A)  A constable must not take hand prints, finger prints, foot prints or toe prints from a suspect who:

                     (a)  is at least 10 but under 18, or is incapable of managing his or her affairs; and

                     (b)  has not been arrested and charged;

except in accordance with Part ID.

             (7)  In deciding whether to make such an order, the magistrate must have regard to:

                     (a)  the seriousness of the offence; and

                     (b)  the age or any disability of the person; and

                     (c)  such other matters as the magistrate thinks fit.

             (8)  The taking of identification material from a person who:

                     (a)  is under 18; or

                     (b)  is incapable of managing his or her affairs;

must be done in the presence of:

                     (c)  a parent or guardian of the person; or

                     (d)  if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.

             (9)  Despite this section, identification material may be taken from a person who:

                     (a)  is not a suspect; and

                     (b)  is under 10 or is incapable of managing his or her affairs;

if a magistrate orders that the material be taken.

           (10)  Despite this section, identification material may be taken from a person who:

                     (a)  is not a suspect; and

                     (b)  is at least 10 but under 18; and

                     (c)  is capable of managing his or her affairs;

if one of the following paragraphs applies:

                     (d)  the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;

                     (e)  if:

                              (i)  one of those persons agrees in writing to the taking of the material but the other does not; and

                             (ii)  a magistrate orders that the material be taken.

           (11)  In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).

           (12)  Despite this section, identification material may be taken from a person who:

                     (a)  is at least 18; and

                     (b)  is capable of managing his or her affairs; and

                     (c)  is not a suspect;

if the person consents in writing.

3ZK  Destruction of identification material

             (1)  If:

                     (a)  identification material has been taken from a person under section 3ZJ; and

                     (b)  a period of 12 months has elapsed since the identification material was taken; and

                     (c)  proceedings in respect of an offence to which the investigation material relates have not been instituted or have been discontinued;

the identification material must be destroyed as soon as practicable.

             (2)  If identification material has been taken from a person under section 3ZJ and:

                     (a)  the person is found to have committed an offence to which the identification material relates but no conviction is recorded; or

                     (b)  the person is acquitted of such an offence and:

                              (i)  no appeal is lodged against the acquittal; or

                             (ii)  an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;

the identification material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence to which the identification material relates is pending.

             (3)  A magistrate may, on application by a constable, extend the period of 12 months referred to in subsection (1) or that period as previously extended under this subsection in relation to particular identification material if the magistrate is satisfied that there are special reasons for doing so.

3ZL  Offence of refusing to allow identification material to be taken

             (1)  If a person is convicted of an offence, the judge or magistrate presiding at the proceedings at which the person was convicted may order:

                     (a)  the person to attend a police station; or

                     (b)  that a constable be permitted to attend on the person in a place of detention;

within one month after the conviction to allow impressions of the person’s fingerprints and/or or a photograph of the person to be taken in accordance with the order.

             (2)  A person must not refuse or fail to allow those impressions or a photograph of the person to be taken.

Penalty:  Imprisonment for 12 months.

             (3)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

          (3A)  The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person’s fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.

          (3B)  A person commits an offence if:

                     (a)  the person is subject to an order under subsection (3A); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes the order.

Penalty:  Imprisonment for 12 months.

          (3C)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

             (4)  Nothing in this section derogates from the right to use the provisions of Part ID as authority for the taking of fingerprints from a prescribed offender or a serious offender.

             (5)  In subsection (4), prescribed offender and serious offender have the meanings given in subsection 23WA(1).

3ZM  Identification parades

             (1)  This section applies to identification parades held in relation to offences.

             (2)  Subject to subsection (3) and to section 3ZN, an identification parade:

                     (a)  may be held if the suspect agrees; or

                     (b)  must be held if:

                              (i)  the suspect has requested that an identification parade be held; and

                             (ii)  it is reasonable in the circumstances to do so.

          (2A)  Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:

                     (a)  the kind of offence, and the gravity of the offence, concerned;

                     (b)  the likely importance in the circumstances of the evidence of identification;

                     (c)  the practicality of holding an identification parade, having regard, among other things:

                              (i)  if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and

                             (ii)  in any case—to whether an identification was made at or about the time of the commission of the offence; and

                     (d)  the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.

             (3)  An identification parade must not be held unless the suspect has been informed that:

                     (a)  he or she is entitled to refuse to take part in the parade; and

                     (b)  if he or she refuses to take part in the parade:

                              (i)  evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and

                             (ii)  evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and

                     (c)  in addition to any requirement under section 3ZN, a legal representative or other person of the suspect’s choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.

             (4)  The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.

             (5)  An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.

             (6)  Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:

                     (a)  the parade must consist of at least 9 persons;

                     (b)  each of the persons who is not the suspect must:

                              (i)  resemble the suspect in age, height and general appearance; and

                             (ii)  not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;

                     (c)  unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;

                     (d)  no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;

                     (e)  if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;

                      (f)  the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:

                              (i)  a legal representative or other person of the suspect’s choice is present with the witness; or

                             (ii)  the parade is recorded by a video recording;

                     (g)  nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;

                     (h)  if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;

                      (i)  the suspect may select where he or she wishes to stand in the parade;

                      (j)  if more than one witness is to view the parade:

                              (i)  each witness must view the parade alone; and

                             (ii)  the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and

                            (iii)  the suspect may change places in the parade after each viewing;

                     (k)  each witness must be told that:

                              (i)  the suspect may not be in the parade; and

                             (ii)  if he or she is unable to identify the suspect with reasonable certainty he or she must say so;

                      (l)  the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;

                    (m)  if the parade is not recorded by a video recording:

                              (i)  the parade must be photographed in colour; and

                             (ii)  a print of a photograph of the parade that is at least 250mm ´ 200mm in size must be made available to the suspect or his or her legal representative; and

                            (iii)  the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;

                     (n)  the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.

             (7)  Nothing in this Act affects the determination of the following questions:

                     (a)  whether or not evidence of a suspect having refused to take part in an identification parade is admissible;

                     (b)  if evidence of such a refusal is admissable, what inferences (if any) may be drawn by a court or jury from the refusal;

                     (c)  whether, after such a refusal, evidence of alternative methods of identification is admissible.

             (8)  If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.

3ZN  Identification parades for suspects under 18 etc.

             (1)  An identification parade must not be held for a suspect who is under 10.

             (2)  An identification parade must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held.

             (3)  An identification parade must not be held for a suspect who:

                     (a)  is at least 10 but under 18; and

                     (b)  is capable of managing his or her affairs;

unless one of the following paragraphs applies:

                     (c)  the suspect agrees to or requests in writing the holding of the parade and a parent or guardian of the suspect agrees in writing to the holding of the parade or, if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect agrees in writing to the holding of the parade;

                     (d)  if:

                              (i)  one of those persons agrees in writing to the holding of the parade but the other does not; and

                             (ii)  a magistrate orders that the parade be held.

             (4)  In deciding whether to make such an order, the magistrate must have regard to:

                     (a)  the seriousness of the offence; and

                     (b)  the age or any disability of the person; and

                     (c)  such other matters as the magistrate thinks fit.

             (5)  An identification parade for a suspect who is under 18 or is incapable of managing his or her affairs must be held in the presence of:

                     (a)  a parent or guardian of the suspect; or

                     (b)  if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect.

3ZO  Identification by means of photographs

             (1)  If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a constable investigating the offence must not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless:

                     (a)  the suspect has refused to take part in an identification parade; or

                    (aa)  the suspect’s appearance has changed significantly since the offence was committed; or

                     (b)  the holding of an identification parade would be:

                              (i)  unfair to the suspect; or

                             (ii)  unreasonable in the circumstances.

          (1A)  Without limiting the matters that may be taken into account in determining whether it would be unreasonable in the circumstances to hold an identification parade, the following must be taken into account:

                     (a)  the kind of offence, and the gravity of the offence, concerned;

                     (b)  the likely importance in the circumstances of the evidence of identification;

                     (c)  the practicality of holding an identification parade, having regard, among other things:

                              (i)  if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and

                             (ii)  in any case—to whether an identification was made at or about the time of the commission of the offence; and

                     (d)  the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.

             (2)  If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:

                     (a)  the constable must show to the witness photographs or pictures of at least 9 different persons;

                     (b)  each photograph or picture of a person who is not the suspect must be of a person who:

                              (i)  resembles the suspect in age and general appearance; and

                             (ii)  does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;

                    (ba)  the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;

                     (c)  the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;

                     (d)  if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;

                     (e)  the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;

                      (f)  the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;

                     (g)  the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;

                     (h)  the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.

             (3)  If:

                     (a)  a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and

                     (b)  the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and

                     (c)  proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and

                     (d)  the photograph or picture is admitted into evidence;

the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.

             (4)  If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.

             (5)  If, after a constable investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4):

                     (a)  a suspect comes into custody in respect of the offence; and

                     (b)  an identification parade is to be held in relation to the suspect;

the constable in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.

             (6)  If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the constable in charge of investigating the offence must, upon application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness concerning the picture.

             (7)  If a suspect is in custody in respect of an offence and a constable investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a constable from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.

3ZP  Identification procedures where there is more than one suspect

                   If:

                     (a)  a constable is attempting to ascertain:

                              (i)  which of 2 or more suspects committed an offence; or

                             (ii)  the identities of 2 or more suspects who may have been jointly involved in an offence; and

                     (b)  for that purpose, the constable intends to conduct an identification parade or to identify a person by showing a photograph or a picture of a suspect to a person;

the constable must undertake a separate identification process for each of the suspects.

3ZQ  Descriptions

             (1)  If a description of a suspect is given to a constable in relation to an offence, the constable must ensure that a record of the description is made and that the record is retained until any proceedings in respect of the offence are completed.

             (2)  Subject to subsection (4), a constable must, if requested to do so by a person who has been charged with an offence, provide the person with the name of every person who, to the knowledge of the constable, claims to have seen, at or about the time of the commission of the offence, a person who is suspected of being involved in its commission.

             (3)  If:

                     (a)  a record of a description of a person is made under subsection (1); and

                     (b)  the person is charged with an offence to which the description relates;

a constable must notify the person or his or her legal representative in writing that a copy of the record, and of any other record of a description that the constable knows about of a person who is suspected of being involved in the commission of the offence, is available for the person.

             (4)  If the constable suspects on reasonable grounds that providing the name of a person under subsection (2) could:

                     (a)  place the person in danger; or

                     (b)  expose the person to harassment or unreasonable interference;

the constable is not required to provide the name of the person.


 

Division 4ADetermining a person’s age

Subdivision APreliminary

3ZQA  Definitions

             (1)  In this Division:

age determination information means a photograph (including an X-ray photograph) or any other record or information relating to a person that is obtained by carrying out a prescribed procedure.

appropriately qualified, in relation to the carrying out of a prescribed procedure, means:

                     (a)  having suitable professional qualifications or experience to carry out the prescribed procedure; or

                     (b)  qualified under the regulations to carry out the prescribed procedure.

Commonwealth offence means:

                     (a)  an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982; or

                     (b)  a State offence that has a federal aspect.

investigating official means:

                     (a)  a member or special member of the Australian Federal Police; or

                     (b)  a member of the police force of a State or Territory; or

                     (c)  a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.

prescribed procedure means a procedure specified by regulations made for the purposes of subsection (2) to be a prescribed procedure for determining a person’s age.

             (2)  The regulations may specify a particular procedure, which may include the taking of an X-ray of a part of a person’s body, to be a prescribed procedure for determining a person’s age.

             (3)  A procedure prescribed for the purposes of subsection (2):

                     (a)  may involve the operation of particular equipment that is specified for the purpose; and

                     (b)  must require that equipment to be operated by an appropriately qualified person.

             (4)  Before the Governor-General makes a regulation for the purposes of subsection (2), the Minister must consult with the Minister responsible for the administration of the Therapeutic Goods Act 1989.

Subdivision BDetermination of age during investigation

3ZQB  Circumstances where investigating official may seek authority to carry out a prescribed procedure

             (1)  If:

                     (a)  an investigating official suspects, on reasonable grounds, that a person may have committed a Commonwealth offence; and

                     (b)  it is necessary to determine whether or not the person is, or was, at the time of the alleged commission of the offence, under 18 because that question is relevant to the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings;

the investigating official may, whether or not the person is in custody at the time, arrange for the carrying out of a prescribed procedure in respect of the person only if:

                     (c)  the investigating official obtains, in accordance with section 3ZQC, the requisite consents to the carrying out of the procedure in respect of the person; or

                     (d)  a magistrate orders, on application by the investigating official, the carrying out of the procedure in respect of the person.

             (2)  An application to a magistrate by an investigating official for the purposes of paragraph (1)(d) may be made:

                     (a)  in person; or

                     (b)  by telephone, telex, fax or other electronic means.

             (3)  In deciding whether to make such an order on application by an investigating official, the magistrate must be satisfied that:

                     (a)  there are reasonable grounds for the suspicion that the person has committed a Commonwealth offence; and

                     (b)  there is uncertainty as to whether or not the person is, or was, at the time of the alleged commission of the offence, under 18; and

                     (c)  the uncertainty will need to be resolved in order to determine the application of the rules governing the person’s detention, the investigation of the offence or the institution of criminal proceedings.

3ZQC  Obtaining of consents for the carrying out of a prescribed procedure

             (1)  For the purposes of paragraph 3ZQB(1)(c), an investigating official is taken to have obtained the requisite consents to the carrying out of a prescribed procedure in respect of a person if the following persons agree in writing to the carrying out of the procedure:

                     (a)  the person in respect of whom it is sought to carry out the procedure;

                     (b)  either:

                              (i)  a parent or guardian of the person; or

                             (ii)  if a parent or guardian is not available or is not acceptable to the person—an independent adult person (other than an investigating official involved in the investigation of the person) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.

             (2)  Before seeking the consents referred to in subsection (1), an investigating official must first inform each of the persons from whom such a consent is being sought, in a language in which the person is able to communicate with reasonable fluency:

                     (a)  the purpose and reasons for which the prescribed procedure is to be carried out; and

                     (b)  the nature of the procedure; and

                     (c)  if the procedure involves the operation of particular equipment—the nature of that equipment; and

                     (d)  that the information obtained from the carrying out of the procedure could affect the manner of dealing with the person on whom the procedure is to be carried out; and

                     (e)  the known risks (if any) that would be posed to the health of the person on whom the procedure is to be carried out; and

                    (ea)  that the persons giving the requisite consent may withdraw that consent at any time; and

                      (f)  that the seeking of the requisite consent and any giving of such consent was being, or would be, recorded; and

                     (g)  that the persons giving the requisite consent are each entitled to a copy of that record; and

                     (h)  that the person on whom the procedure is to be carried out may have, so far as is reasonably practicable, a person of his or her choice present while the procedure is carried out.

             (3)  The requisite consents may be given:

                     (a)  in person; or

                     (b)  by telephone, telex, fax or other electronic means.

             (4)  Nothing in this section affects the rights of a person under Part IC, in particular a person’s rights under:

                     (a)  section 23G (Right to communicate with friend, relative and legal practitioner); or

                     (b)  section 23P (Right of foreign national to communicate with consular office).

3ZQD  Withdrawal of consent

                   If a person who has given consent to the carrying out of a prescribed procedure expressly withdraws consent to the carrying out of that procedure (or if the withdrawal of such consent can reasonably be inferred from the person’s conduct) before or during the carrying out of the procedure, the carrying out of the procedure is not to proceed otherwise than by order of a magistrate on the application of an investigating official.

3ZQE  Recording of giving of information about carrying out a prescribed procedure and relevant responses

             (1)  An investigating official must, if practicable, ensure that:

                     (a)  the giving of information about a prescribed procedure and the responses (if any) of the persons to whom the information is given are recorded by audio tape, video tape or other electronic means; and

                     (b)  a copy of the record is made available to the person on whom it is sought to carry out the procedure.

             (2)  If recording the giving of information and the responses (if any) of the persons to whom the information is given in the manner referred to in subsection (1) is not practicable, the investigating official must ensure that:

                     (a)  a written record of the giving of the information and of the responses (if any) is made; and

                     (b)  a copy of the record is made available to the person on whom it is sought to carry out the procedure.

Subdivision CDetermination of age during proceedings

3ZQF  Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative

                   If:

                     (a)  a person is being prosecuted for a Commonwealth offence; and

                     (b)  the judge or magistrate presiding over the proceedings related to that offence is satisfied that it is necessary to ascertain whether or not the person is, or was, at the time of the alleged commission of that offence, under 18;

the judge or magistrate presiding may make an order requiring the carrying out of a prescribed procedure in respect of the person.

Subdivision DCommunication of orders by judges or magistrates

3ZQG  Orders made by judges or magistrates concerning carrying out of a prescribed procedure

             (1)  If a judge or a magistrate orders the carrying out of a prescribed procedure (whether as a result of a request by an investigating official or not), the judge or magistrate must:

                     (a)  ensure that a written record of the order, and of the reasons for the making of the order, is kept; and

                     (b)  ensure that the person on whom the procedure is to be carried out is told by an investigating official in a language in which the person is able to communicate with reasonable fluency:

                              (i)  that an order for the carrying out of the procedure has been made and of the reasons for the making of the order; and

                             (ii)  of the arrangements for the carrying out of the procedure; and

                            (iii)  of the fact that reasonable force may be used to secure the compliance of the person to whom the order relates.

             (2)  The judge or magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.

Subdivision EMatters relating to the carrying out of prescribed procedures

3ZQH  Appropriate medical or other standards to be applied

                   A prescribed procedure must be carried out in a manner consistent with either or both of the following:

                     (a)  appropriate medical standards;

                     (b)  appropriate other relevant professional standards.

3ZQI  Reasonable and necessary force

                   Except where the carrying out of a prescribed procedure to determine a person’s age is undertaken with the consent of that person and of an additional adult person in accordance with section 3ZQC, the person carrying out the procedure, and any person assisting that person, is entitled to use such force as is reasonable and necessary in the circumstances.

Subdivision FDisclosure and destruction of age determination information

3ZQJ  Disclosure of age determination information

             (1)  A person is guilty of an offence if:

                     (a)  the person’s conduct causes the disclosure of age determination information other than as provided by this section; and

                     (b)  the person is reckless as to any such disclosure.

Penalty:  Imprisonment for 2 years.

             (2)  A person may only disclose age determination information:

                     (a)  for a purpose related to establishing and complying with the rules governing:

                              (i)  the detention of the person to whom the age determination information relates; or

                             (ii)  the investigation of a Commonwealth offence by that person; or

                            (iii)  the institution of criminal proceedings against that person for a Commonwealth offence; or

                     (b)  for a purpose related to the conduct of:

                              (i)  the investigation of the person to whom the age determination information relates for a Commonwealth offence; or

                             (ii)  proceedings for a Commonwealth offence against that person; or

                     (c)  for the purpose of an investigation by the Privacy Commissioner of the Commonwealth or the Commonwealth Ombudsman; or

                     (d)  if the person to whom the age determination information relates consents in writing to the disclosure.

Note:          A defendant bears an evidential burden in relation to the matters referred to in subsection (2)—see subsection 13.3(3) of the Criminal Code.

3ZQK  Destruction of age determination information

             (1)  If, in relation to a Commonwealth offence:

                     (a)  age determination information relating to a person has been obtained by carrying out a prescribed procedure; and

                     (b)  12 months have passed since the carrying out of the procedure; and

                     (c)  proceedings in respect of the offence have not been instituted against the person from whom the information was taken or have discontinued;

the information must be destroyed as soon as practicable.

             (2)  If, in relation to a Commonwealth offence, age determination information relating to a person has been obtained by carrying out a prescribed procedure and:

                     (a)  the person is found to have committed the offence but no conviction is recorded; or

                     (b)  the person is acquitted of the offence and:

                              (i)  no appeal is lodged against the acquittal; or

                             (ii)  an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;

the information must be destroyed as soon as practicable unless an investigation into, or a proceeding against, the person for another Commonwealth offence is pending.

             (3)  A magistrate may, on application by an investigating official, extend the period of 12 months referred to in subsection (1), or that period as previously extended under this subsection in relation to the information, if the magistrate is satisfied that there are special reasons for doing so.


 

Division 5General

3ZR  Conduct of ordinary searches and frisk searches

                   An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.

3ZS  Announcement before entry

             (1)  A constable must, before any person enters premises under a warrant or to arrest a person:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  A constable is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

                     (a)  the safety of a person (including a constable); or

                     (b)  that the effective execution of the warrant or the arrest is not frustrated.

3ZT  Offence for making false statements in warrants

                   A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

3ZU  Offences relating to telephone warrants

                   A person must not:

                     (a)  state in a document that purports to be a form of warrant under section 3R the name of an issuing officer unless that officer issued the warrant; or

                     (b)  state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the issuing officer; or

                     (c)  purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:

                              (i)  has not been approved by an issuing officer under that section; or

                             (ii)  to depart in a material particular from the terms authorised by an issuing officer under that section; or

                     (d)  give to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty:  Imprisonment for 2 years.

3ZV  Retention of things which are seized

             (1)  Subject to any contrary order of a court, if a constable seizes a thing under this Part, the constable must return it if:

                     (a)  the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

                     (b)  if the thing was seized under section 3T:

                              (i)  the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

                             (ii)  the period of 60 days after its seizure ends;

                            whichever first occurs;

unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

             (2)  If a thing is seized under section 3T, at the end of the 60 days specified in subsection (1) the constable must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it unless:

                     (a)  proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                     (b)  the constable may retain the thing because of an order under section 3ZW; or

                     (c)  the constable is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

3ZW  Magistrate may permit a thing to be retained

             (1)  If a thing is seized under section 3T, and:

                     (a)  before the end of 60 days after the seizure; or

                     (b)  before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced, the constable may apply to a magistrate for an order that he or she may retain the thing for a further period.

             (2)  If the magistrate is satisfied that it is necessary for the constable to continue to retain the thing:

                     (a)  for the purposes of an investigation as to whether an offence has been committed; or

                     (b)  to enable evidence of an offence to be secured for the purposes of a prosecution;

the magistrate may order that the constable may retain the thing for a period specified in the order.

             (3)  Before making the application, the constable must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person who the constable believes to have such an interest of the proposed application.

3ZX  Law relating to legal professional privilege not affected

                   This Part does not affect the law relating to legal professional privilege.


 

Part IAGeneral

  

4AAA  Commonwealth laws conferring non-judicial functions and powers on officers

Application

             (1)  This section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of the following persons:

                     (a)  a State or Territory judge;

                     (b)  a magistrate;

                     (c)  a Justice of the Peace or other person:

                              (i)  employed in a State or Territory court; and

                             (ii)  authorised to issue search warrants, or warrants of arrest.

Note 1:       Magistrate is defined in section 16C of the Acts Interpretation Act 1901.

Note 2:       Justice of the Peace is defined in paragraph 26(e) of the Acts Interpretation Act 1901.

Functions and powers conferred personally

             (2)  The function or power is conferred on the person only in a personal capacity and not, in the case of a State or Territory judge or magistrate, as a court or a member of a court.

Function or power need not be accepted

             (3)  The person need not accept the function or power conferred.

Protection and immunity provided

             (4)  A State or Territory judge or magistrate performing a conferred function, or exercising a conferred power, has the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the judge or magistrate is a member).

             (5)  A person referred to in paragraph (1)(c) performing a conferred function, or exercising a conferred power, has the same protection and immunity as he or she would have in performing functions and powers as part of the person’s employment with a State or Territory court, as the case may be.

This section applies regardless of when Commonwealth law made

             (6)  This section applies whether the law conferring a function or power was made before, on or after, the commencement of this section.

A law of the Commonwealth relating to criminal matters

             (7)  In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.

4AAB  Arrangements for conferral of non-judicial functions and powers

Governor-General may make arrangements

             (1)  The Governor-General may make arrangements with:

                     (a)  the Governor of a State (excluding the Northern Territory); and

                     (b)  the Chief Minister for the Australian Capital Territory; and

                     (c)  the Administrator of the Northern Territory; and

                     (d)  the Administrator of Norfolk Island;

for the performance of functions, and the exercise of powers, that are neither judicial nor incidental to a judicial function or power, conferred by a law of the Commonwealth relating to criminal matters on:

                     (e)  a State or Territory judge; or

                      (f)  a magistrate; or

                     (g)  a Justice of the Peace or other person:

                              (i)  employed in a State or Territory court; and

                             (ii)  authorised to issue search warrants, or warrants of arrest.

Note 1:       Magistrate is defined in section 16C of the Acts Interpretation Act 1901.

Note 2:       Justice of the Peace is defined in paragraph 26(e) of the Acts Interpretation Act 1901.

Lack of arrangement does not affect validity of exercise of power or performance of function

             (2)  The validity of the performance of a function, or the exercise of a power, is not affected by the absence of an arrangement under this section covering the performance of the function or exercise of the power.

This section applies regardless of when Commonwealth law made

             (3)  This section applies to functions or powers conferred by laws made before, on or after the commencement of this section.

A law of the Commonwealth relating to criminal matters

             (4)  In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.

4A  Meaning of certain words

                   In a law of the Commonwealth, unless the contrary intention appears:

committed for trial, in relation to a person, means committed to prison with a view to the person being tried before a judge and jury, or admitted to bail upon a recognizance to appear and be so tried.

indictment includes an information and a presentment.

4AA  Penalty units

             (1)  In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears:

penalty unit means $110.

             (2)  In this section:

Territory Ordinance means an ordinance that:

                     (a)  was made under an Act providing for the acceptance, administration or government of a Territory other than the Territory of Norfolk Island; and

                     (b)  has not become an enactment of the Australian Capital Territory;

and includes a regulation made under such an ordinance.

4AB  Conversion of pecuniary penalties expressed in dollar amounts to penalty units

             (1)  A reference in a law of the Commonwealth or in a Territory Ordinance to a pecuniary penalty of D dollars, where D is a number, is taken to be a reference to a pecuniary penalty of P penalty units, where P is:

                     (a)  if D ¸ 100 is a whole number—that whole number; or

                     (b)  if D ¸ 100 is not a whole number—the next highest whole number.

             (2)  Subsection (1) does not apply to a reference to the maximum amount of a penalty that is not imposed by a court, or by a service tribunal under the Defence Force Discipline Act 1982.

             (3)  Subsection (1) does not apply to:

                     (a)  section 76 of the Trade Practices Act 1974; or

                     (c)  a provision of a law of the Commonwealth prescribed for the purposes of this subsection.

             (4)  In this section:

penalty includes a fine.

Territory Ordinance has the same meaning as in section 4AA.

4B  Pecuniary penalties—natural persons and bodies corporate

             (1)  A provision of a law of the Commonwealth relating to indictable offences or summary offences shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to natural persons.

             (2)  Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:

where:

Term of Imprisonment is the maximum term of imprisonment, expressed in months, by which the offence is punishable.

          (2A)  Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.

             (3)  Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.

          (3A)  Where an Act (whether enacted before or after the commencement of this subsection) confers power to make an instrument (including rules, regulations or by-laws but not including a law of a Territory) and specifies the maximum pecuniary penalty that can be imposed for offences created by such an instrument, then:

                     (a)  unless the contrary intention appears, the specified penalty is taken to be the maximum penalty that the instrument can prescribe for such offences by natural persons; and

                     (b)  where a body corporate is convicted of such an offence—the specifying of that penalty is not to be treated as an indication of a contrary intention for the purposes of applying subsection (3).

             (4)  Where under a law of the Commonwealth any forfeiture, penalty or reparation is paid to a person aggrieved, it is payable to a body corporate where the body corporate is the person aggrieved.

4C  Offences under 2 or more laws

             (1)  Where an act or omission constitutes an offence:

                     (a)  under 2 or more laws of the Commonwealth; or

                     (b)  both under a law of the Commonwealth and at common law;

the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission.

             (2)  Where an act or omission constitutes an offence under both:

                     (a)  a law of the Commonwealth and a law of a State; or

                     (b)  a law of the Commonwealth and a law of a Territory;

and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth.

             (3)  Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth.

4D  Penalties

             (1)  Except so far as the contrary intention appears, a penalty, whether pecuniary or otherwise, set out at the foot of any provision of an Act as described in a paragraph of subsection (1A) indicates:

                     (a)  if the provision expressly creates an offence—that the offence is punishable on conviction by a penalty not exceeding the penalty so set out; or

                     (b)  in any other case—that contravention of the provision is an offence against the provision, punishable on conviction by a penalty not exceeding the penalty so set out.

          (1A)  Subsection (1) applies to a penalty set out:

                     (a)  at the foot of a section of an Act; or

                     (b)  at the foot of a subsection of an Act, but not at the foot of the section containing the subsection; or

                     (c)  at the foot of a clause of any Schedule to an Act; or

                     (d)  at the foot of a subclause of any Schedule to an Act, but not at the foot of the clause containing the subclause.

          (1B)  Subsection (1) does not affect the operation of subsection 4B(2), (2A) or (3).

             (2)  Subsection (1) applies to any instrument made under an Act (including rules, regulations or by-laws but not including a law of a Territory) as if the instrument were an Act and as if each such rule, regulation or by-law were a section of an Act.

4E  Pecuniary penalties

                   A pecuniary penalty for an offence against a law of the Commonwealth may, unless the contrary intention appears, be recovered in any court of summary jurisdiction.

4F  Effect of alterations in penalties

             (1)  Where a provision of a law of the Commonwealth increases the penalty or maximum penalty for an offence, the penalty or maximum penalty as increased applies only to offences committed after the commencement of that provision.

             (2)  Where a provision of a law of the Commonwealth reduces the penalty or maximum penalty for an offence, the penalty or maximum penalty as reduced extends to offences committed before the commencement of that provision, but the reduction does not affect any penalty imposed before that commencement.

4G  Indictable offences

                   Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.

4H  Summary offences

                   Offences against a law of the Commonwealth, being offences which:

                     (a)  are punishable by imprisonment for a period not exceeding 12 months; or

                     (b)  are not punishable by imprisonment;

are summary offences, unless the contrary intention appears.

4J  Certain indictable offences may be dealt with summarily

             (1)  Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.

             (2)  Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.

             (3)  Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:

                     (a)  where the offence is punishable by imprisonment for a period not exceeding 5 years—a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or

                     (b)  where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years—a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

             (4)  A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.

             (5)  Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.

             (6)  A court of summary jurisdiction shall not impose under subsection (3) or (5):

                     (a)  a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;

                     (b)  a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or

                     (c)  both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.

             (7)  This section does not apply to an offence against:

                     (a)  section 24AA or 24AB or subsection 79(2) or (5) of this Act; or

                     (b)  section 80.1 or 91.1 of the Criminal Code.

4JA  Some indictable offences punishable by fine only may be dealt with summarily

             (1)  A court of summary jurisdiction may hear and determine an indictable offence if:

                     (a)  the offence is not punishable by imprisonment; and

                     (b)  the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and

                     (c)  the defendant and prosecution consent.

             (2)  If the defendant is convicted, the court may impose a pecuniary penalty of:

                     (a)  not more than 60 penalty units for an individual or 300 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 300 penalty units for an individual or 1,500 penalty units for a body corporate; or

                     (b)  not more than 120 penalty units for an individual or 600 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate.

However, the court may not impose a pecuniary penalty greater than the penalty that could have been imposed if the offence had been prosecuted on indictment.

             (3)  This section has effect subject to any contrary intention indicated by the law creating the offence.

             (4)  Without limiting subsection (3), this section does not apply to an indictable offence:

                     (a)  created by a law that provides that the offence may be heard and determined by a court of summary jurisdiction; or

                     (b)  described in subsection 4J(4) (about offences relating to property valued at $5,000 or less).

4K  Continuing and multiple offences

             (1)  Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.

             (2)  Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person is guilty of an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.

             (3)  Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

             (4)  If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.

4L  Specified defences not to preclude other defences

                   Where a provision of a law of the Commonwealth provides a defence to a particular offence, the provision does not, unless the contrary intention appears, prevent the use of any defence that is otherwise available.

4M  Children under 10

                   A child under 10 years old cannot be liable for an offence against a law of the Commonwealth.

4N  Children over 10 but under 14

             (1)  A child aged 10 years or more but under 14 years old can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong.

             (2)  The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

6  Accessory after the fact

                   Any person who receives or assists another person, who is, to his knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

9  Seizure and condemnation of forfeitable goods

             (1)  Any constable may, without warrant, seize any articles which are forfeited or which he has reasonable ground to believe are forfeited under any law of the Commonwealth, and take them before a court of summary jurisdiction.

             (2)  Where articles are taken before a court of summary jurisdiction under subsection (1), the court shall inquire into the matter and:

                     (a)  if the court is satisfied that the articles are forfeited—shall order that the articles be condemned; or

                     (b)  if the court is not so satisfied—shall order that the articles be delivered to such person as the court is satisfied is entitled to the articles.

          (2A)  A court of summary jurisdiction may, before inquiring into a matter under subsection (2), require notice of the inquiry to be given to such persons as the court thinks fit.

             (3)  Where any prosecution is pending, an order for the condemnation or the delivery to any persons of any articles relating thereto shall not be made until the prosecution is determined.

             (4)  All articles that are condemned as forfeited must be transferred to the Official Trustee to be dealt with under section 9A.

9A  Forfeited articles to be dealt with by Official Trustee

                   Where articles are transferred to the Official Trustee under subsection 9(4), the Official Trustee must, subject to any direction by the Attorney-General given in a particular case:

                     (a)  sell or otherwise dispose of the articles; and

                     (b)  apply the proceeds of the sale or disposition in payment of the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 9B payable to or incurred by it in connection with the sale or disposition; and

                     (c)  credit the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.

9B  Costs etc. payable to Official Trustee

             (1)  The regulations may make provision in relation to:

                     (a)  the costs, charges and expenses incurred in connection with; and

                     (b)  the Official Trustee’s remuneration in respect of;

the performance or exercise by the Official Trustee of functions, duties or powers under section 9A.

             (2)  An amount equal to each amount of remuneration that the Official Trustee receives under the regulations is to be paid to the Commonwealth.

             (3)  Where there are no regulations in relation to a matter referred to in subsection (1):

                     (a)  the regulations referred to in section 288 of the Proceeds of Crime Act 2002 apply, so far as they are applicable, and with appropriate changes, in relation to the matter; and

                     (b)  a reference in subsection (1) or (2) to regulations is taken to be a reference to the regulations referred to in section 288 of the Proceeds of Crime Act 2002.

13  Institution of proceedings in respect of offences

                   Unless the contrary intention appears in the Act or regulation creating the offence, any person may:

                     (a)  institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or

                     (b)  institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.

15  Remand of defendant

                   Where a person is charged, before a court of summary jurisdiction, with an offence against the law of the Commonwealth, if, from the absence of witnesses or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the court before whom the accused person appears or is brought, may:

                     (a)  by warrant from time to time remand the defendant to some gaol, lock-up, or other place of custody for such period as the court shall deem necessary to be there kept until the time appointed for continuing the hearing; or

                     (b)  order the discharge of the defendant upon his entering into a recognizance conditioned for his appearance at the time and place appointed for continuing the hearing.

15AA  Bail not to be granted in certain cases

             (1)  Despite any other law of the Commonwealth, a bail authority must not grant bail to a person (the defendant) charged with, or convicted of, an offence covered by subsection (2) unless the bail authority is satisfied that exceptional circumstances exist to justify bail.

             (2)  This subsection covers:

                     (a)  a terrorism offence (other than an offence against section 102.8 of the Criminal Code); and

                     (b)  an offence against a law of the Commonwealth, if:

                              (i)  a physical element of the offence is that the defendant engaged in conduct that caused the death of a person; and

                             (ii)  the fault element for that physical element is that the defendant intentionally engaged in that conduct (whether or not the defendant intended to cause the death, or knew or was reckless as to whether the conduct would result in the death); and

                     (c)  an offence against a provision of Division 80 or Division 91 of the Criminal Code, or against section 24AA of this Act, if:

                              (i)  the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or

                             (ii)  conduct that is a physical element of the offence carried a substantial risk of causing the death of a person; and

                     (d)  an ancillary offence against a provision of Division 80 or Division 91 of the Criminal Code, or against section 24AA of this Act, if, had the defendant engaged in conduct that is a physical element of the primary offence to which the ancillary offence relates, there would have been a substantial risk that the conduct would have caused the death of a person.

             (3)  To avoid doubt, the express reference in paragraph (2)(d) to an ancillary offence does not imply that references in paragraphs (2)(a), (b) or (c) to an offence do not include references to ancillary offences.

             (4)  To avoid doubt, except as provided by subsection (1), this section does not affect the operation of a law of a State or a Territory.

Note:          Subsection (1) indirectly affects laws of the States and Territories because it affects section 68 of the Judiciary Act 1903.

             (5)  In this section:

ancillary offence has the meaning given in the Criminal Code.

bail authority means a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory.

primary offence has the meaning given in the Criminal Code.

15A  Enforcement of fines etc.

             (1)  A law of a State or Territory relating to the enforcement or recovery of a fine imposed on an offender applies to a person convicted in the State or Territory of an offence against a law of the Commonwealth. The law applies:

                     (a)  so far as it is not inconsistent with a law of the Commonwealth; and

                     (b)  with the modifications made by or under this section.

       (1AA)  If a law of a State or Territory requires or permits a person or authority other than a court to take action to impose a penalty described in subsection (1AB) for failure to pay a fine, the law applies under subsection (1) as if the law did not require or permit the person or authority to take the action but instead:

                     (a)  allowed any person to apply to a court of summary jurisdiction of the State or Territory for an order imposing the penalty; and

                     (b)  allowed the court to make the order; and

                     (c)  provided for the order to have the same effect that the taking of the action by the person or authority has under the law without the modifications made by or under this subsection; and

                     (d)  were subject to any prescribed modifications consequential on the other modifications described in this subsection, or facilitating the operation of the law with those modifications.

        (1AB)  Subsection (1AA) applies in relation to any of the following penalties:

                     (a)  garnishment of a debt, wage or salary;

                     (b)  a charge or caveat on property;

                     (c)  seizure of property;

                     (d)  forfeiture of property;

                     (e)  community service by a person who failed to pay a fine;

                      (f)  detention or imprisonment of a person who failed to pay a fine;

                     (g)  a penalty that is similar to a penalty described in paragraph (a), (b), (c), (d), (e) or (f);

                     (h)  a penalty prescribed by the regulations.

        (1AC)  Jurisdiction is conferred on a court of summary jurisdiction of a State or Territory to make orders described in subsection (1AA).

     (1ACA)  The following provisions do not apply in relation to subsections (1AA) and (1AC):

                     (a)  paragraph 26(d) of the Acts Interpretation Act 1901;

                     (b)  paragraph 39(2)(d) of the Judiciary Act 1903.

Note:          This subsection lets an officer of a State or Territory court of summary jurisdiction make an order under this section imposing a penalty for failure to pay a fine for a Commonwealth offence if the law of the State or Territory allows the officer to exercise the court’s powers.

       (1AD)  If a law of a State or Territory requires or permits a court or a court officer to:

                     (a)  refer a matter to a person or organisation; or

                     (b)  notify a person or organisation; or

                     (c)  provide information to a person or organisation;

in relation to the enforcement or recovery of a fine imposed by the court, the law applies under subsection (1) in relation to the Federal Court of Australia and the Family Court of Australia in the same way as it applies to a court of the State or Territory.

          (1A)  Where there is a law of a State or Territory with respect to the enforcement or recovery of fines ordered to be paid by offenders (including a law described in subsection (1AA)) that applies in relation to fines ordered to be paid by offenders convicted by courts of summary jurisdiction:

                     (a)  subsection (1) operates to require that law to apply and be applied to persons who are convicted of federal offences by the Federal Court of Australia in the same manner as that law would apply and be applied if that Court were a court of summary jurisdiction; and

                     (b)  that subsection does not operate in relation to any law of that State or Territory that applies in relation to fines ordered to be paid by offenders convicted by superior courts.

             (2)  Without limiting the generality of subsection (1), in the application to federal offenders of any State or Territory laws with respect to the enforcement or recovery of fines, a requirement that the amount of a fine be paid to a State or Territory office or officer is to be treated as a requirement that the amount of the fine be paid in accordance with the law of the Commonwealth.

             (3)  Where a court imposes a sentence or sentences of imprisonment on a person in respect of a failure to pay a fine or fines imposed for a federal offence or offences, the court must direct that the sentence, or all the sentences, commence to be served from the earliest practicable day despite the fact that the person may, on that day, already be serving another sentence of imprisonment for a federal, State or Territory offence.

             (4)  Despite subsection (3), a court may, where it is of the opinion that, in all the circumstances of the case, it is more appropriate to do so, direct that a period of imprisonment imposed on a person in respect of a failure to pay a fine imposed in respect of a federal offence commence to be served during, or at the end of, a period of imprisonment imposed for a similar failure in respect of another federal offence.

             (5)  In this section:

modifications includes additions, omissions and substitutions.

15B  Time for commencement of prosecutions

             (1)  Subject to subsection (1B), a prosecution of an individual for an offence against any law of the Commonwealth may be commenced as follows:

                     (a)  if the maximum penalty which may be imposed for the offence in respect of an individual is, or includes, a term of imprisonment of more than 6 months in the case of a first conviction—at any time;

                     (b)  in any other case—at any time within one year after the commission of the offence.

          (1A)  A prosecution of a body corporate for an offence against any law of the Commonwealth may be commenced as follows:

                     (a)  if the maximum penalty which may be imposed for the offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction—at any time;

                     (b)  in any other case—at any time within one year after the commission of the offence.

          (1B)  A prosecution of an individual for an offence arising under section 5, or under another law of the Commonwealth dealing with aiding and abetting, in relation to an offence committed by a body corporate may be commenced as follows:

                     (a)  if the maximum penalty which may be imposed for the principal offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction—at any time;

                     (b)  in any other case—at any time within one year after the commission of the offence by the individual.

             (2)  Notwithstanding any provision in any law of the Commonwealth passed before the commencement of this Act and providing any shorter time for the commencement of the prosecution, any prosecution for an offence against the law may be commenced at any time within one year after the commission of the offence.

             (3)  Where by any law of the Commonwealth any longer time than the time provided by this section is provided for the commencement of a prosecution in respect of an offence against that law, a prosecution in respect of the offence may be commenced at any time within that longer time.

15C  Form of indictments, informations and summonses

             (1)  At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.

             (2)  If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.

             (3)  The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant.

15E  Privilege of Parliament not affected

                   Nothing in this Act shall derogate from any power or privilege of either House of the Parliament or of the members or committees of either House of Parliament as existing at the commencement of this Act.

15F  Civil rights not affected

                   Nothing in this Act shall affect the right of any person aggrieved by any act or omission which is punishable as an offence against this Act to institute civil proceedings in any court in respect of such act or omission.


 

Part IABControlled operations for obtaining evidence about Commonwealth offences

Division 1Objects of Part

15G  Objects of Part

             (1)  The objects of this Part are:

                     (a)  to exempt from criminal liability, and to indemnify from civil liability:

                              (i)  law enforcement officers who, in the course of a controlled operation authorised as provided under this Part; and

                             (ii)  certain other persons who, when authorised by a law enforcement officer and in the course of a controlled operation authorised as provided under this Part;

                            take an active part, or are otherwise involved, in the commission of a Commonwealth offence or an offence against a law of a State or Territory; and

                     (b)  to require:

                              (i)  the Commissioner and the Chief Executive Officer of the ACC to report to the Minister on requests to authorise controlled operations and on the action taken in respect of controlled operations authorised under this Part; and

                             (ii)  the Minister to report on these matters to Parliament; and

                     (c)  to provide that evidence of importation of narcotic goods obtained through a controlled operation:

                              (i)  started before the commencement of this Part; and

                             (ii)  in which the Australian Federal Police and the Australian Customs Service acted in concert to allow the narcotic goods to pass through the Customs;

                            is not to be rejected because of the unlawful conduct of law enforcement officers who took an active part, or were otherwise involved, in the importation of the narcotic goods.

             (2)  Subject to section 15X, this Part is not intended to limit a discretion that a court has:

                     (a)  to admit or exclude evidence in criminal proceedings; or

                     (b)  to stay criminal proceedings in the interests of justice.

15GA  Concurrent operation of State and Territory laws

                   It is the Parliament’s intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part.


 

Division 2General

15H  What is a controlled operation?

                   A controlled operation is an operation that:

                     (a)  involves the participation of law enforcement officers; and

                     (b)  is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and

                     (c)  may involve a law enforcement officer or other person in acts, or omissions to act, that would, apart from subsection 15I(1) or (2), constitute a Commonwealth offence or an offence against a law of a State or Territory.

15HA  Meaning of engage in conduct etc.

                   In this Part:

                     (a)  a reference to engaging in conduct includes a reference to omitting to act; and

                     (b)  a reference to a person’s conduct includes a reference to the person’s omissions.

15HB  What is a serious Commonwealth offence or a serious State offence that has a federal aspect?

             (1)  For the purposes of this Part, serious Commonwealth offence means an offence against a law of the Commonwealth:

                     (a)  that involves theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, money laundering, perverting the course of justice, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forgery including forging of passports, armament dealings, illegal importation or exportation of fauna into or out of Australia, espionage, sabotage or threats to national security, misuse of a computer or electronic communications, people smuggling, slavery, piracy, the organisation, financing or perpetration of sexual servitude or child sex tourism, dealings in child pornography or material depicting child abuse, importation of prohibited imports or exportation of prohibited exports, or that involves matters of the same general nature as one or more of the foregoing or that is of any other prescribed kind; and

                     (b)  that is punishable on conviction by imprisonment for a period of 3 years or more.

             (2)  For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that has the characteristics of a serious Commonwealth offence.

             (2)  Without limiting subsection (1), an offence against section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27 of the Criminal Code is a serious Commonwealth offence for the purposes of this Part.

15I  Law enforcement officers etc. not liable for offences committed for purposes of authorised controlled operation

             (1)  A law enforcement officer who engages in conduct that, apart from this subsection, would constitute a Commonwealth offence or an offence against a law of a State or Territory is not criminally responsible for that offence if:

                     (a)  he or she engages in that conduct in the course of duty for the purposes of a controlled operation; and

                     (b)  the conduct meets the requirements of subsection 15IB(1).

             (2)  A person who is not a law enforcement officer and who engages in conduct that, apart from this subsection, would constitute a Commonwealth offence or an offence against a law of a State or Territory is not criminally responsible for that offence if:

                     (a)  he or she engages in that conduct for the purposes of a controlled operation; and

                     (b)  a law enforcement officer has authorised the person to engage in that conduct; and

                     (c)  the conduct meets the requirements of subsection 15IB(2).

          (2A)  Subsection (2) does not apply to a person who:

                     (a)  is an informant of a law enforcement officer; or

                     (b)  is believed to have been involved, other than for law enforcement purposes, in the criminal activity in respect of which the controlled operation was authorised.

             (3)  The fact that, because of subsection (1) or (2), a person whose conduct is covered by a certificate given under section 15M is not criminally responsible for an offence does not affect the liability, for that offence or any other offence, of any person whose conduct is not covered by the certificate.

             (4)  Subsection (3) applies despite any provision of Chapter 2 of the Criminal Code to the contrary.

             (5)  If:

                     (a)  the importation of goods of a particular kind into Australia is an offence against a law of the Commonwealth; and

                     (b)  a person imports goods of that kind into Australia; and

                     (c)  because of this section, that person is not liable for an offence against that law in respect of the importation; and

                     (d)  that law provides for another consequence, other than that person’s criminal liability, to arise from the importation (for example, forfeiture of the goods);

this section does not prevent that consequence from arising under that law.

             (6)  For the purposes of this section, a member of a police force or other law enforcement agency of a foreign country is taken to be acting in the course of duty to the extent that he or she takes part in the controlled operation in accordance with the instructions given by an Australian law enforcement officer.

15IA  Indemnification of law enforcement officers etc.

             (1)  The Commonwealth must indemnify a law enforcement officer against any liability (including reasonable costs) the officer incurs because of conduct the officer engages in if:

                     (a)  he or she engages in that conduct in the course of duty for the purposes of a controlled operation; and

                     (b)  the conduct meets the requirements of subsection 15IB(1); and

                     (c)  the requirements (if any) specified in the regulations have been met.

             (2)  The Commonwealth must indemnify a person who is not a law enforcement officer against any liability (including reasonable costs) the person incurs because of conduct the person engages in if:

                     (a)  he or she engages in that conduct for the purposes of a controlled operation; and

                     (b)  a law enforcement officer has authorised the person to engage in that conduct; and

                     (c)  the conduct meets the requirements of subsection 15IB(2); and

                     (d)  the requirements (if any) specified in the regulations have been met.

          (2A)  Subsection (2) does not apply to a person who:

                     (a)  is an informant of a law enforcement officer; or

                     (b)  is believed to have been involved, other than for law enforcement purposes, in the criminal activity in respect of which the controlled operation was authorised.

             (3)  For the purposes of this section, a member of a police force or other law enforcement agency of a foreign country is taken to be acting in the course of duty to the extent that he or she takes part in the controlled operation in accordance with the instructions given by an Australian law enforcement officer.

15IB  Requirements that must be met for the purposes of sections 15I and 15IA

             (1)  A law enforcement officer’s conduct relating to a controlled operation meets the requirements of this subsection if:

                     (a)  at the time when he or she engages in that conduct there is in force a certificate given under section 15M that authorises the operation; and

                     (b)  the conduct is within the nature of the activities covered by the certificate; and

                     (c)  the conduct does not breach any conditions to which the certificate is subject; and

                     (d)  the conduct does not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit:

                              (i)  that offence; or

                             (ii)  an offence of that kind; and

                     (e)  the conduct does not involve the commission of a sexual offence against any person or an offence involving the death of or serious injury to any person.

             (2)  Any other person’s conduct relating to a controlled operation meets the requirements of this subsection if:

                     (a)  at the time when he or she engages in that conduct there is in force a certificate given under section 15M that authorises the operation; and

                     (b)  the certificate identifies the person as being permitted to be involved in the operation; and

                     (c)  the conduct is within the nature of the activities covered by the certificate; and

                     (d)  the conduct does not breach any conditions to which the certificate is subject; and

                     (e)  the conduct does not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit:

                              (i)  that offence; or

                             (ii)  an offence of that kind; and

                      (f)  the conduct does not involve the commission of a sexual offence against any person or an offence involving the death of or serious injury to any person.

15IC  Effect of sections 15I and 15IA on other laws relating to criminal investigation

                   Sections 15I and 15IA do not apply to a person’s conduct that is authorised, or could have been authorised, under a law of the Commonwealth, a State or a Territory relating to:

                     (a)  arrest or detention of individuals; or

                     (b)  searches of individuals; or

                     (c)  entry onto, or searches or inspections of, premises; or

                     (d)  searches, inspections or seizures of other property; or

                     (e)  forensic procedures; or

                      (f)  electronic surveillance devices or telecommunications interception; or

                     (g)  identification procedures; or

                     (h)  any other matter concerning powers of criminal investigation.

15ID  Compensation for loss or injury

                   Where a person suffers loss or injury as a result of a controlled operation, the Commonwealth is liable to pay to the person who has suffered the loss or injury such compensation as is agreed on between the Commonwealth and that person or, in default of agreement, is determined by action against the Commonwealth in a court of competent jurisdiction.

15J  Application for certificate authorising a controlled operation—by whom and to whom made

             (1)  An Australian law enforcement officer may apply to an authorising officer for a certificate authorising a controlled operation.

             (2)  Any of the following is an authorising officer for the controlled operation:

                     (a)  if the operation is a major controlled operation that relates to investigating a serious Commonwealth offence, or a possible serious Commonwealth offence, the investigation of which is within the functions of the Australian Federal Police—the Commissioner or a Deputy Commissioner;

                     (b)  if the operation is not a major controlled operation but relates to investigating a serious Commonwealth offence, or a possible serious Commonwealth offence, the investigation of which is within the functions of the Australian Federal Police—any AFP authorising officer;

                     (c)  if the operation relates to investigating a serious Commonwealth offence, or a possible serious Commonwealth offence, the investigation of which is within the functions of the ACC—any ACC authorising officer.

          (2A)  A major controlled operation is a controlled operation that is likely to:

                     (a)  involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or

                     (b)  continue for more than 3 months; or

                     (c)  be directed against suspected criminal activity that includes a threat to human life.

             (3)  The following are AFP authorising officers:

                     (a)  the Commissioner;

                     (b)  a Deputy Commissioner;

                     (c)  a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.

             (4)  The following are ACC authorising officers:

                     (a)  the Chief Executive Officer of the ACC;

                     (b)  a member of the staff of the ACC who is an SES employee and who is authorised in writing by the Chief Executive Officer of the ACC for the purposes of this paragraph.

15K  Form and contents of application

                   Subject to section 15L, an application for a certificate authorising a controlled operation must:

                     (a)  be in writing signed by the applicant; and

                     (b)  state whether any previous application has been made in relation to the operation; and

                     (c)  if any previous application has been made—state whether it was granted or refused; and

                     (d)  contain, or be accompanied by, such information, in writing, as the authorising officer requires to decide whether or not to grant the application.

15L  Urgent applications

             (1)  An applicant may make an application under this section for a certificate authorising a controlled operation if he or she has reason to believe that the delay caused by making an application that complies with section 15K may affect the success of the operation.

             (2)  The application may be made:

                     (a)  orally in person; or

                     (b)  by telephone; or

                     (c)  by any other means of communication.

             (3)  The applicant must give to the authorising officer, either orally or otherwise, such information as the authorising officer requires to decide whether or not to grant the application.

             (4)  The applicant must tell the authorising officer:

                     (a)  whether any previous application has been made in relation to the operation; and

                     (b)  if any previous application has been made—whether it was granted or refused.

             (5)  If the authorising officer decides to grant the application, the authorising officer must:

                     (a)  immediately inform the applicant of his or her decision orally in person or by telephone or any other means of communication; and

                     (b)  as soon as practicable, give to the applicant a certificate that complies with section 15N.

             (6)  The applicant must, as soon as practicable, prepare and give to the authorising officer an application, in writing, that complies with section 15K.

15M  On what grounds may a certificate authorising a controlled operation be given?

                   On receiving an application that complies with section 15K or 15L in relation to a controlled operation, the authorising officer may give a certificate authorising the operation if he or she is reasonably satisfied that:

                     (a)  it is likely that a serious Commonwealth offence has been, is being or will be committed; and

                     (b)  the nature and extent of the offence, and any suspected criminal activity that is related to it, justifies a controlled operation; and

                     (c)  conducting the operation would not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit:

                              (i)  that offence; or

                             (ii)  an offence of that kind; and

                     (d)  any unlawful activity involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

                     (e)  the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the operation will be under the control of an Australian law enforcement officer at the end of the operation; and

                      (f)  any unlawful activity involved in conducting the operation will not:

                              (i)  seriously endanger the health or safety of any person; or

                             (ii)  cause the death of, or serious injury to, any person; or

                            (iii)  involve the commission of a sexual offence against any person; or

                            (iv)  result in loss of, or serious damage to, property (other than illicit goods); and

                     (g)  the operation will be conducted in a way that is consistent with the reporting and accountability requirements of this Part; and

                     (h)  if a person who is not a law enforcement officer is to be involved in the operation—the role to be assigned to the person could not adequately be performed by a law enforcement officer.

15N  Form and contents of certificate

             (1)  A certificate authorising a controlled operation must be in writing and signed by the authorising officer.

             (2)  The certificate must:

                     (a)  state the name of the applicant for the certificate; and

                     (b)  state whether the application for the certificate was made in accordance with section 15K or 15L; and

                     (c)  give a brief description of the operation that includes (but is not limited to) the following details to the extent to which they are known and are relevant:

                              (i)  the name of the person targeted;

                             (ii)  the nature and quantity of any illicit goods to which the operation relates;

                            (iii)  the foreign countries through which any such illicit goods have passed, or are likely to pass, in the course of the operation;

                            (iv)  the place or places at which any such illicit goods have been, or will be, dealt with by the Australian Customs Service;

                             (v)  if subparagraph (iv) does not apply—the place or places where any such illicit goods have entered, or are likely to enter, into Australia; and

                    (ca)  state the nature of the activities covered by the certificate; and

                    (cb)  identify each person who:

                              (i)  is not a law enforcement officer; and

                             (ii)  is permitted to be involved in the operation; and

                    (cc)  for each person identified, state the nature of the activities covered by the certificate in relation to that person; and

                    (cd)  state any conditions to which the certificate is subject; and

                     (d)  state that the authorising officer authorises the operation to be carried out; and

                     (e)  specify the day on which, and the time when, the certificate was given.

          (2A)  A person referred to in paragraph (2)(cb) may be identified, for the purposes of that paragraph, by a false name or a code if:

                     (a)  the Commissioner; or

                     (b)  the Chief Executive Officer of the ACC;

holds a document that enables the person to be identified from that false name or code.

             (3)  If the application for the certificate was made under section 15L, the certificate must specify the day on which, and the time when, the applicant was informed of the decision of the authorising officer to give the certificate.

             (4)  The certificate may specify a day (not later than 6 months after the day on which it was given) as the day on which the certificate is to cease to be in force.

Note:          A certificate must be reviewed in order for it to remain in force longer than 3 months: see section 15OB.

             (5)  A failure to comply with this section does not affect the validity of a certificate authorising a controlled operation.

15NA  Variation of certificate

             (1)  An Australian law enforcement officer may apply to an appropriate authorising officer for variation of a certificate given under section 15M.

             (2)  The application must:

                     (a)  be in writing signed by the applicant; and

                     (b)  contain, or be accompanied by, such information, in writing, as the appropriate authorising officer requires to decide whether or not to grant the application.

             (3)  If the application complies with this section, the appropriate authorising officer may vary the certificate if he or she is reasonably satisfied that:

                     (a)  the certificate as varied could have been given under section 15M; and

                     (b)  the variation is necessary for:

                              (i)  the success of the controlled operation; or

                             (ii)  the protection of the health or safety of any person; or

                            (iii)  the protection of property from loss or damage; or

                            (iv)  ensuring that all those involved in the operation have appropriate exemption under section 15I and appropriate indemnity under section 15IA.

             (4)  The appropriate authorising officer must give the applicant a written notice:

                     (a)  stating whether the certificate is varied; and

                     (b)  if the certificate is varied—setting out each variation.

             (5)  A variation of the certificate takes effect when the notice is given.

15O  Surrender of certificate

             (1)  The Australian law enforcement officer in charge of a controlled operation authorised by a certificate given under section 15M may surrender the certificate by sending to the authorising officer a notice in writing signed by him or her to the effect that he or she surrenders the certificate.

             (2)  The notice must specify the time when the notice is to have effect.

15OA  Termination of certificate

             (1)  Any AFP authorising officer may terminate a certificate given under section 15M by that or any other AFP authorising officer.

             (2)  Any ACC authorising officer may terminate a certificate given under section 15M by that or any other ACC authorising officer.

             (4)  The AFP authorising officer or ACC authorising officer (as the case requires) must send written notice of the termination to the Australian law enforcement officer in charge of the controlled operation to which the certificate relates.

             (5)  The notice:

                     (a)  must state that the certificate is terminated; and

                     (b)  must be signed by the AFP authorising officer or ACC authorising officer (as the case requires); and

                     (c)  must specify the time when the notice is to have effect.

15OB  Expiry of certificate after 6 months or 3 months

             (1)  A certificate given under section 15M expires at the end of the period of 6 months after the day on which it was given, unless subsection (2) applies.

             (2)  A certificate given under section 15M expires at the end of the period of 3 months after the day on which it was given unless, during the period, a nominated Tribunal member has:

                     (a)  reviewed the certificate; and

                     (b)  decided that the certificate should be in force for 6 months.

Note:          A certificate can also cease to be in force after a time specified in the certificate: see paragraph 15P(3)(a).

             (3)  The certificate must be reviewed by a nominated Tribunal member during the last 2 weeks of the period of 3 months after the day on which the certificate was given under section 15M. The nominated Tribunal member must decide whether the certificate should be in force for 6 months.

             (4)  The nominated Tribunal member must not decide that the certificate should be in force for 6 months unless he or she is reasonably satisfied as to all the matters referred to in paragraphs 15M(a) to (h).

             (5)  The nominated Tribunal member must give written notice of his or her decision on the review to the Australian law enforcement officer in charge of the controlled operation to which the certificate relates.

15OC  Who are nominated Tribunal members?

             (1)  A nominated Tribunal member is a member of the Administrative Appeals Tribunal in respect of whom a written nomination by the Minister is in force that permits the member to conduct reviews and to make decisions under section 15OB.

             (2)  The Minister must not nominate a person unless the person:

                     (a)  is a Deputy President or full-time senior member; or

                     (b)  is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.

             (3)  A nominated Tribunal member has, in conducting a review or making a decision under section 15OB, the same protection and immunity that a Justice of the High Court has in relation to a proceeding of that court.

15P  Period for which certificate is in force

             (1)  If a certificate authorising a controlled operation was given as a result of an application made under section 15L, the certificate is taken to have come into force at the time when the authorising officer told the applicant that he or she had decided to give the certificate.

             (2)  In any other case, a certificate authorising the controlled operation comes into force at the time when it was given.

             (3)  A certificate remains in force:

                     (a)  if the certificate specifies a day on which it is to cease to be in force—until the end of that day; or

                     (b)  if the certificate is surrendered under section 15O—until the time specified in the surrender notice; or

                     (c)  if the certificate is terminated under section 15OA—until the time specified in the termination notice; or

                     (d)  in any other case—until the certificate expires under section 15OB.

15PA  Effect of being unaware etc. of variation, surrender, termination or expiry of certificate

             (1)  If a certificate given under section 15M has been varied in a way that limits the scope of the certificate, sections 15I and 15IA continue to apply to a person whose conduct is covered by the certificate, as if the certificate had not been varied in that way, for so long as he or she:

                     (a)  is unaware of the variation; and

                     (b)  is not reckless with respect to the existence of the variation.

             (2)  If a certificate given under section 15M ceases to be in force because:

                     (a)  it has been surrendered or terminated; or

                     (b)  it has expired at the end of the period of 3 months after the day on which it was given;

sections 15I and 15IA continue to apply to a person whose conduct is covered by the certificate, as if there had been no surrender, termination or expiry, for so long as he or she:

                     (c)  is unaware of the surrender, termination or expiry; and

                     (d)  is not reckless with respect to the existence of the surrender, termination or expiry.

             (3)  For the purposes of this section, a person is reckless with respect to the existence of the variation, surrender, termination or expiry of a certificate given under section 15M if:

                     (a)  he or she is aware of a substantial risk that the variation, surrender, termination or expiry existed; and

                     (b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

15Q  Chief Executive Officer of Customs to be notified of certain certificates

             (1)  This section applies if:

                     (a)  a certificate authorising a controlled operation is given under section 15M by an AFP authorising officer or an ACC authorising officer; and

                     (b)  the applicant for the certificate believes that illicit goods involved in the conduct of the operation may be dealt with by the Australian Customs Service.

             (2)  The applicant for the certificate must, as soon as practicable after the certificate is given, notify the Chief Executive Officer of Customs, or a person nominated by him or her for the purposes of this subsection, in writing of:

                     (a)  the applicant’s name; and

                     (b)  the date on which the certificate is given; and

                     (c)  to the extent to which it is known:

                              (i)  the place or places at which the illicit goods will pass into the control of the Australian Customs Service; and

                             (ii)  the time or times when, and the day or days on which, the illicit goods are expected to pass into the control of the Australian Customs Service.

             (3)  A failure to comply with this section does not affect the validity of the certificate authorising the controlled operation.

15R  Quarterly reports to the Minister

             (1)  The Commissioner must, within 2 weeks after the end of each quarter, give to the Minister a report informing the Minister of the following that occurred during the quarter:

                     (a)  each decision by an AFP authorising officer to grant or refuse an application for a controlled operation;

                     (b)  each variation of a certificate under section 15NA by such a person;

                     (c)  each review of a certificate under subsection 15OB(3) that had initially been given by such a person under section 15M;

                     (d)  each occasion on which a certificate, given by such a person, is surrendered under section 15O or terminated under section 15OA;

                     (e)  each certificate, given by such a person, that is still in force at the end of the quarter.

             (2)  The Chief Executive Officer of the ACC must, within 2 weeks after the end of each quarter, give to the Minister a report informing the Minister of the following that occurred during the quarter:

                     (a)  each decision by an ACC authorising officer to grant or refuse an application for a controlled operation;

                     (b)  each variation of a certificate under section 15NA by such a person;

                     (c)  each review of a certificate under subsection 15OB(3) that had initially been given by such a person under section 15M;

                     (d)  each occasion on which a certificate, given by such a person, is surrendered under section 15O or terminated under section 15OA;

                     (e)  each certificate, given by such a person, that is still in force at the end of the quarter.

15S  Contents of quarterly reports

             (1)  A report under section 15R must:

                     (a)  include the reasons for each of the following decisions that is covered by the report:

                              (i)  each decision referred to in paragraph 15R(1)(a) or (2)(a);

                             (ii)  each variation referred to in paragraph 15R(1)(b) or (2)(b);

                            (iii)  the decision on each review referred to in paragraph 15R(1)(c) or (2)(c); and

                     (b)  include sufficient details of:

                              (i)  each surrender or termination of a certificate referred to in paragraph 15R(1)(d) or (2)(d); and

                             (ii)  each certificate referred to in paragraph 15R(1)(e) or (2)(e);

                            to identify the certificate.

          (1A)  The reasons included in the report for a decision giving a certificate authorising a controlled operation must include an indication of the extent to which the authorising officer, in making the decision, took into account the seriousness of:

                     (a)  the serious Commonwealth offence in relation to which the certificate was given; and

                     (b)  any suspected criminal activity that is related to that offence.

             (2)  If a controlled operation was carried out, and the certificate relating to the operation ceased to be in force, during the quarter to which the report relates, the report must also:

                     (a)  identify each person targeted by the operation; and

                     (b)  identify each person whose conduct was covered by the certificate, and state whether the person was a law enforcement officer at the time of the operation; and

                     (c)  state the nature of the activities engaged in for the purposes of the operation; and

                     (d)  if the operation involved illicit goods, state, to the extent known:

                              (i)  the nature and quantity of the illicit goods; and

                             (ii)  the route through which the illicit goods passed in the course of the operation; and

                     (e)  if the operation involved illicit goods that are narcotic goods:

                              (i)  identify the agency to which any law enforcement officer who, in the course of the operation, had possession of the narcotic goods belonged; and

                             (ii)  identify, to the extent known, any person (other than a law enforcement officer) who, in the course of the operation, had possession of the narcotic goods; and

                            (iii)  state whether or not the narcotic goods have been destroyed; and

                            (iv)  if the narcotic goods have not been destroyed—contain the information specified in subsection (3) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.

             (3)  If the controlled operation involved narcotic goods that have not been destroyed and the identity of the person in whose possession they are is known, the report must:

                     (a)  if the person is a law enforcement officer—identify the agency to which the officer belongs; or

                     (b)  otherwise—identify the person.

             (5)  If the person giving the report is of the view that disclosing the identity of a person may:

                     (a)  endanger the safety of the person; or

                     (b)  prejudice an investigation or prosecution;

paragraph (2)(b), subparagraph (2)(e)(ii) or paragraph (3)(b) is satisfied if:

                     (c)  a code is used to refer to the person; and

                     (d)  the reason for not disclosing the identity of the person is given.

15T  Minister to table report before Parliament

             (1)  The Minister must lay before each House of the Parliament, not later than the first sitting day of that House after 1 October each year, a report about controlled operations that includes the information required by subsection (2).

             (2)  Subject to subsections (3) and (4), the report must include (but is not limited to):

                     (a)  the following information in respect of each application for a certificate authorising a controlled operation made in the financial year ending on the previous 30 June:

                              (i)  the date on which the application was made;

                             (ii)  the decision taken about the application;

                            (iii)  the reasons for that decision; and

                     (b)  the information in reports given to the Minister under section 15R during that financial year.

             (3)  The report is not to mention any information about a person (including the person’s name) that has not already been published about the person.

             (4)  If, on information given by the Commissioner or the Chief Executive Officer of the ACC, the Minister is of the view that it is likely that the inclusion of any information in a report may:

                     (a)  endanger the safety of a person; or

                     (b)  prejudice an investigation or prosecution;

the Minister must exclude the information from the report. The Minister must then include that information in the first report laid before the Houses of Parliament after the Minister considers that the information will no longer endanger the safety of the person or prejudice the investigation or prosecution.

15U  Evidentiary certificates

             (1)  In a prosecution for a serious Commonwealth offence in respect of which a controlled operation was conducted, a document purporting to be a certificate, given under section 15M, authorising the operation:

                     (a)  may be tendered in evidence; and

                     (b)  is conclusive evidence that the authorising officer who gave the certificate was satisfied as to the facts stated in the document, to the extent that they are facts of a kind that are required under section 15N to be included in a certificate.

             (2)  A document certified in writing by the Commissioner or the Chief Executive Officer of the ACC, as the case may be, to be a true copy of a certificate referred to in subsection (1) may be tendered in evidence in a prosecution referred to in subsection (1) as if it were the original certificate.


 

Division 2AMonitoring of controlled operations by the Ombudsman

15UA  Ombudsman to be notified of certain matters

             (1)  Within 2 weeks after the end of each quarter:

                     (a)  the Commissioner; and

                     (b)  the Chief Executive Officer of the ACC;

must give to the Ombudsman a copy of the report given to the Minister under section 15R for that quarter.

             (2)  The Ombudsman may require the Commissioner or the Chief Executive Officer of the ACC to furnish such information about an application, a certificate, a variation of a certificate or a surrender or termination of a certificate as is necessary for the Ombudsman’s proper consideration of it.

15UB  Inspection of records by Ombudsman

             (1)  The Ombudsman:

                     (a)  must inspect the records of the Australian Federal Police and the ACC in relation to controlled operations at least once every 12 months; and

                     (b)  may inspect the records of the Australian Federal Police or the ACC at any time, for the purpose of ascertaining whether the requirements of this Part are being complied with.

             (2)  Nothing in this section requires the Ombudsman to inspect records in relation to a controlled operation that has not been completed.

15UC  Annual reports by Ombudsman

             (1)  The Ombudsman must, as soon as practicable after 30 June each year, prepare a report of the Ombudsman’s work and activities under this Division during the preceding 12 months and give copies of the report to the President of the Senate and the Speaker of the House of Representatives for presentation to the Senate and the House of Representatives, respectively.

             (2)  The report must include, for each law enforcement agency concerned, comments as to the comprehensiveness and adequacy of the reports which were provided to the Parliament by that law enforcement agency.

             (3)  Nothing in this section requires participants of the controlled operation to be included in a report for the year if the operation had not been completed at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.

15UD  Ancillary matters concerning reports

             (1)  A report prepared under this Division must not include any information which, if made public, could reasonably be expected:

                     (a)  to endanger a person’s safety; or

                     (b)  prejudice an investigation or prosecution; or

                     (c)  compromise the agency’s operational activities or methodologies.

             (2)  The Ombudsman must give a copy of any report prepared under this Division to the chief executive officer of the law enforcement agency to which it relates and to the Minister responsible for that agency.


 

Division 3Controlled operations started before commencement of this Part

15V  Interpretation

             (1)  In this Division, a reference to a controlled operation is a reference to a controlled operation started before the commencement of this Part.

             (2)  In this Division:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

Ministerial Agreement means the agreement:

                     (a)  concerning the relationship between the Australian Customs Service on the one hand, and the National Crime Authority and the Australian Federal Police on the other, with respect to narcotic drug law enforcement; and

                     (b)  made by the Minister for Industry, Technology and Commerce and the Special Minister of State on 3 June 1987.

Regional Director for a State or Territory means:

                     (a)  a Regional Director for a State or Territory within the meaning of the Customs Act 1901; or

                     (b)  a Collector of Customs for a State or Territory within the meaning of the Customs Act 1901 as in force from time to time before 1 July 1995.

15W  Minister may give certificate about controlled operation that involved unlawful importation of narcotic goods by law enforcement officer

             (1)  If:

                     (a)  evidence leading to the prosecution of a person for an offence against section 233B of the Customs Act 1901 or an associated offence was obtained through a controlled operation; and

                     (b)  a law enforcement officer, acting in the course of duty for the purposes of the operation:

                              (i)  imported narcotic goods contrary to paragraph 233B(1)(b) of the Customs Act 1901; or

                             (ii)  engaged in conduct contrary to Part 2.4 of the Criminal Code in relation to paragraph 233B(1)(b) of the Customs Act 1901; and

                     (c)  for the purposes of the operation:

                              (i)  the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901), be exempted from detailed scrutiny by officers of the Australian Customs Service; and

                             (ii)  the request for exemption was granted;

the Minister may give a certificate in writing to the effect that, for the purposes of the controlled operation described in the certificate:

                     (d)  a request of the kind referred to in paragraph (c) was made by the person named in the certificate on the day specified in the certificate; and

                     (e)  the request was granted on the day specified in the certificate.

             (2)  In a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, a document purporting to be a certificate given under subsection (1) is, upon mere production, admissible as prima facie evidence of the facts stated in the document.

15X  Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer

                   In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or engaged in conduct contrary to Part 2.4 of the Criminal Code in relation to such an offence, is to be disregarded, if:

                     (a)  the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and

                     (b)  for the purposes of the operation:

                              (i)  the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901), be exempted from detailed scrutiny by officers of the Australian Customs Service; and

                             (ii)  the request for exemption was granted.


 

Part IACAssumed identities

Division 1Definitions etc.

15XA  Definitions etc.

             (1)  In this Part:

approved officer means an officer or foreign officer referred to in an authorisation under paragraph 15XI(2)(c).

approved person means a person referred to in an authorisation under subparagraph 15XI(2)(d)(i).

authorisation means an authorisation that is in force under section 15XG or 15XH.

authorisation conditions means conditions to which an authorisation is subject under paragraph 15XI(2)(j).

authorising person means:

                     (a)  the head of a participating agency; or

                     (b)  a person in a participating agency, included in a prescribed class of persons, who is authorised in writing by the head of the agency.

Commonwealth agency means:

                     (a)  the Commonwealth; or

                     (b)  an authority of the Commonwealth.

Commonwealth participating agency means one of the following agencies:

                     (a)  the Australian Federal Police;

                     (b)  the Australian Customs Service;

                     (c)  the ACC;

                     (d)  the Australian Security Intelligence Organisation;

                     (e)  the Australian Secret Intelligence Service;

                     (h)  the Australian Taxation Office;

                      (i)  any other Commonwealth agency specified in the regulations.

foreign officer means an officer, however described, of an agency that has responsibility for:

                     (a)  law enforcement in a foreign country; or

                     (b)  intelligence gathering for a foreign country; or

                     (c)  security of a foreign country.

issuing agency means:

                     (a)  a Commonwealth agency; or

                    (aa)  a State agency; or

                    (ab)  a Territory agency; or

                     (b)  a non-government body;

that is referred to in an authorisation under paragraph 15XI(2)(f).

issuing evidence of an assumed identity includes making an entry in a record of information in respect of the assumed identity.

non-government body means a body that is not managed or controlled by or on behalf of the Commonwealth or the Government of a State or Territory.

participating agency means either a Commonwealth participating agency or a State or Territory participating agency.

State agency, in relation to a particular State, means that State or an authority of that State.

State or Territory participating agency means:

                     (a)  the police force of a State or Territory; or

                     (b)  one of the following bodies:

                              (i)  the Independent Commission Against Corruption established under the Independent Commission Against Corruption Act 1988 of New South Wales;

                             (ii)  the Crime and Misconduct Commission of Queensland;

                           (iiia)  the Western Australian Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 of Western Australia;

                            (iv)  a similar body established under a law of a State or Territory; or

                     (c)  one of the following bodies:

                              (i)  the New South Wales Crime Commission established under the New South Wales Crime Commission Act 1985 of New South Wales;

                            (iii)  a similar body established under a law of a State or Territory; or

                    (ca)  the Police Integrity Commission established by the Police Integrity Commission Act 1996 of New South Wales; or

                     (d)  any other body or agency of a State or Territory specified in the regulations.

supervising officer means the officer referred to in an authorisation under subparagraph 15XI(2)(d)(ii).

Territory agency, in relation to a particular Territory, means that Territory or an authority of that Territory.

             (2)  A reference in this Part to an approved officer or an approved person using an assumed identity includes a reference to:

                     (a)  the officer or person representing the identity covered by his or her authorisation to be his or her real identity when it is not (whether that representation is express or implied, and whether it is by words, conduct or omission); or

                     (b)  such an officer or person acting in a way that is consistent with such an identity, rather than the person’s real identity.

             (3)  A reference in this Part to an approved officer or approved person acquiring evidence of an assumed identity includes a reference to the officer or person obtaining, or taking any steps towards obtaining, a document or other thing that purports to evidence the identity covered by his or her authorisation, when it is not the real identity of the person.

             (4)  A reference in this Part to a person engaging in conduct includes a reference to the person omitting to do an act.


 

Division 2Effect of an assumed identity

15XB  Assumed identities may be acquired and used

             (1)  An approved officer may acquire evidence of, and use, an assumed identity if the acquisition or use:

                     (a)  is in the course of duty; and

                     (b)  is in accordance with the authorisation conditions (if any).

             (2)  An approved person may acquire evidence of, and use, an assumed identity if the acquisition or use is in accordance with:

                     (a)  directions given by the supervising officer mentioned in the person’s authorisation; and

                     (b)  the authorisation conditions (if any).

Note:          The acquisition of evidence, and use, of an assumed identity is authorised by the authorising person of a participating agency under Division 3.

15XC  Protection from criminal liability

             (1)  An approved officer, who engages in conduct that, apart from this subsection, would constitute an offence against a law of the Commonwealth, a State or Territory, is not criminally responsible for that offence if:

                     (a)  the officer engages in the conduct in the course of acquiring evidence of, or using, an assumed identity; and

                     (b)  the officer engages in the conduct in the course of duty; and

                     (c)  the conduct is in accordance with the authorisation conditions (if any); and

                     (d)  the conduct would not constitute that offence if the assumed identity were the officer’s real identity.

Example:    This subsection could apply if an approved officer, when using an assumed identity, makes the false representation that he or she is unemployed (but that representation would be true if the assumed identity were real).

             (2)  An approved person who engages in conduct that, apart from this subsection, would constitute an offence against a law of the Commonwealth, a State or Territory, is not criminally responsible for that offence if:

                     (a)  the person engages in the conduct in the course of acquiring evidence of, or using, an assumed identity; and

                     (b)  the conduct is in accordance with:

                              (i)  directions given by the supervising officer; and

                             (ii)  the authorisation conditions (if any); and

                     (c)  the conduct would not constitute that offence if the assumed identity were the person’s real identity.

Note:          Division 5 has offences relating to the misuse etc. of assumed identities.

15XD  Indemnification of approved officers and persons

             (1)  A Commonwealth participating agency whose authorising person issues an authorisation must indemnify an approved officer against any liability (including reasonable costs) that the officer incurs because of conduct the officer engages in if:

                     (a)  the officer is covered by the authorisation; and

                     (b)  the officer engages in the conduct in acquiring evidence of, or using, an assumed identity in the course of duty; and

                     (c)  the conduct is in accordance with the authorisation conditions (if any); and

                     (d)  the requirements (if any) specified in the regulations have been met.

             (2)  A Commonwealth participating agency whose authorising person issues an authorisation must indemnify an approved person against any liability (including reasonable costs) that the person incurs because of conduct the person engages in if:

                     (a)  the person is covered by an authorisation; and

                     (b)  the person engages in conduct in acquiring evidence of, or using, an assumed identity; and

                     (c)  the conduct is in accordance with:

                              (i)  any directions given by the supervising officer; and

                             (ii)  the authorisation conditions (if any); and

                     (d)  the requirements (if any) specified in the regulations have been met.

15XE  Effect of being unaware of variation or revocation of authorisation

             (1)  If an approved officer’s or approved person’s authorisation has been varied in a way that limits its scope, this Division continues to apply to the officer or person, as if the authorisation had not been varied in that way, for so long as he or she:

                     (a)  is unaware of the variation; and

                     (b)  is not reckless with respect to the existence of the variation.

             (2)  If an approved officer’s or approved person’s authorisation is revoked, this Division continues to apply to the officer or person, as if the authorisation had not been revoked, for so long as he or she:

                     (a)  is unaware of the revocation; and

                     (b)  is not reckless with respect to the existence of the revocation.

             (3)  For the purposes of this section, a person is reckless with respect to the variation or revocation of an authorisation if:

                     (a)  he or she is aware of a substantial risk that the variation or revocation occurred; and

                     (b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

15XF  Documents authorising use of skill or qualification

                   Sections 15XC and 15XD do not apply to an approved officer or approved person engaging in conduct if:

                     (a)  a particular skill or qualification is needed to engage in that conduct; and

                     (b)  the person does not have that skill or qualification;

whether or not the officer or person has acquired, as evidence of an assumed identity, a document that establishes that he or she has that skill or qualification.

Example:    An officer who cannot fly a plane is not authorised to fly even though he or she has acquired a pilot’s licence under an assumed identity.


 

Division 3Authorising the acquisition or use of assumed identities

15XG  Commonwealth authorisations of the acquisition or use of assumed identities

             (1)  An authorising person of a Commonwealth participating agency may, if satisfied that it is appropriate to do so, authorise a person to do either or both of the following:

                     (a)  acquire evidence of an assumed identity from:

                              (i)  any Commonwealth agency; or

                            (ia)  any State agency; or

                            (ib)  any Territory agency; or

                             (ii)  any non-government body;

                     (b)  use the assumed identity.

             (2)  However, the authorising person may only authorise the use of the assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.

             (3)  An authorising person of a Commonwealth participating agency may, if satisfied that it is reasonably necessary to do so, authorise a foreign officer to do either or both of the following:

                     (a)  acquire evidence of an assumed identity from:

                              (i)  any Commonwealth agency; or

                            (ia)  any State agency; or

                            (ib)  any Territory agency; or

                             (ii)  any non-government body;

                     (b)  use an assumed identity.

15XH  State or Territory authorisations of the acquisition or use of assumed identities

             (1)  An authorising person of a State or Territory participating agency may, if satisfied that it is appropriate to do so, authorise a person (other than a foreign officer) to do either or both of the following:

                     (a)  acquire evidence of an assumed identity from any Commonwealth agency;

                     (b)  use the assumed identity.

Note:          Only a Commonwealth participating agency can authorise a foreign officer to acquire evidence of, or use, an assumed identity: see subsection 15XG(3).

             (2)  However, the authorising person may only authorise the use of the assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.

15XI  Contents of an authorisation for an assumed identity

             (1)  An authorisation to acquire evidence of, and use, an assumed identity must be in writing and signed by the authorising person.

             (2)  The authorisation must specify:

                     (a)  the authorising person’s name; and

                     (b)  the date on which the authorisation is given; and

                     (c)  if the person who is authorised to acquire or use the assumed identity is an officer in the authorising person’s participating agency or a foreign officer—that officer’s name; and

                     (d)  if the person who is authorised to acquire or use the assumed identity is not such an officer:

                              (i)  the name of the person who is authorised to acquire or use the assumed identity; and

                             (ii)  the name of the officer in the authorising person’s participating agency who will supervise that acquisition or use; and

                     (e)  details of the assumed identity which the authorisation covers; and

                      (f)  all Commonwealth agencies, State agencies, Territory agencies or non-government bodies who are to be requested to issue evidence of the assumed identity; and

                     (g)  details of each such request; and

                     (h)  the reasons for the need to use the assumed identity; and

                      (i)  whether the assumed identity can be used in a foreign country and the reasons for the need for this use; and

                      (j)  any conditions to which the authorisation is subject, including in relation to use in a foreign country.

             (3)  An authorisation can cover more than one assumed identity.

15XJ  When an authorisation is in force

                   An authorisation is in force until it is revoked.

15XK  Variation and revocation of authorisations

             (1)  An authorising person who issues an authorisation, or any other authorising person in the same participating agency, may vary or revoke the authorisation at any time.

             (2)  The approved officer or approved person covered by the authorisation must be given a written notice of the variation or revocation.

             (3)  The notice must state:

                     (a)  the date from which the variation or revocation takes effect; and

                     (b)  the nature of the variation (if any); and

                     (c)  the reasons for the variation or revocation.


 

Division 4Issuing and cancelling evidence of assumed identities

15XL  Authorising person may request agencies and bodies to issue evidence of assumed identities etc.

                   An authorising person who issues an authorisation may request an issuing agency that is specified in the authorisation under paragraph 15XI(2)(f) to issue evidence of an assumed identity covered by the authorisation to the approved officer or approved person.

15XM  Requesting Commonwealth agencies to issue evidence of assumed identities etc.

             (1)  An issuing agency of the Commonwealth that receives a request under section 15XL from an authorising person in a Commonwealth participating agency must comply with the request.

             (2)  An issuing agency of the Commonwealth that receives such a request from an authorising person in a State or Territory participating agency may comply with the request, but does not have to do so.

15XMA  Requesting State agencies or Territory agencies to issue evidence of assumed identities etc.

             (1)  An issuing agency that is a State agency of a particular State and that receives a request under section 15XL must comply with the request to the extent that the laws of the State require it to do so.

             (2)  An issuing agency that is a Territory agency of a particular Territory and that receives a request under section 15XL must comply with the request to the extent that the laws of the Territory require it to do so.

15XN  Requesting non-government bodies to issue evidence of assumed identities etc.

                   An issuing agency that is a non-government body that receives a request under section 15XL may comply with the request, but does not have to do so.

Note:          Only Commonwealth participating agencies can request non-government bodies to issue evidence of an assumed identity.

15XO  Cancelling evidence of assumed identities etc.

                   An issuing agency that has issued evidence of an assumed identity because of a request under section 15XL, must cancel the evidence (including by deleting or altering an entry in a record of information) on the written request of:

                     (a)  the authorising person who made the request; or

                     (b)  any other authorising person in the same participating agency.

15XP  Protection from criminal liability

                   An employee in an issuing agency, who engages in conduct that, apart from this section, would constitute an offence against a law of the Commonwealth, a State or Territory, is not criminally responsible for the offence if the employee engages in the conduct in responding to the request in the course of duty.

15XQ  Indemnification of issuing agencies etc.

                   A Commonwealth participating agency whose authorising person makes a request under section 15XL must indemnify:

                     (a)  an employee of an issuing agency; and

                     (b)  an issuing agency;

against any liability (including reasonable costs) incurred by that employee or agency because of conduct engaged in by the employee if:

                     (c)  the employee engages in the conduct in responding to the request in the course of duty; and

                     (d)  the requirements (if any) specified in the regulations have been met.


 

Division 5Offences relating to assumed identities

15XR  Misuse of assumed identities

             (1)  A person commits an offence if:

                     (a)  the person is an approved officer; and

                     (b)  the person acquires evidence of, or uses, an assumed identity covered by the person’s authorisation; and

                     (c)  the acquisition or use is not in the course of duty.

Penalty:  12 months imprisonment.

             (2)  A person commits an offence if:

                     (a)  the person is an approved person; and

                     (b)  the person acquires evidence of, or uses, an assumed identity covered by the person’s authorisation; and

                     (c)  the acquisition or use is not in accordance with the directions of the supervising officer.

Penalty:  12 months imprisonment.

             (3)  A person commits an offence if:

                     (a)  the person is an approved officer or an approved person; and

                     (b)  the person acquires evidence of, or uses, an assumed identity covered by the person’s authorisation; and

                     (c)  in doing so, the person engages in conduct that breaches an authorisation condition.

Penalty:  12 months imprisonment.

15XS  Disclosing information relating to assumed identities

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the disclosure reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not that other person’s real identity; and

                     (c)  the disclosure:

                              (i)  endangers, or is likely to endanger, the health or safety of any person; or

                             (ii)  prejudices, or is likely to prejudice, the effective conduct of an operation carried out by any participating agency; and

                     (d)  the assumed identity is or was covered by an authorisation.

Penalty:  10 years imprisonment.

             (2)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the disclosure reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not that other person’s real identity; and

                     (c)  the assumed identity is or was covered by an authorisation.

Penalty:  2 years imprisonment.


 

Division 6Miscellaneous

15XT  Disclosing real identities during court proceedings etc.

             (1)  If the real identity of an approved officer or approved person who is or was covered by an authorisation, might be disclosed in proceedings before a court, tribunal or a Royal Commission or other commission of inquiry, then the court, tribunal or commission must:

                     (a)  ensure that the parts of the proceedings that relate to the real identity of the officer or person are held in private; and

                     (b)  make such orders relating to the suppression of the publication of evidence given by the court, tribunal or commission as will, in its opinion, ensure that the real identity of the officer or person is not disclosed.

             (2)  However, this section does not apply to the extent that the court, tribunal or commission considers that the interests of justice require otherwise.

15XU  Keeping and auditing records of assumed identities

             (1)  The head of a Commonwealth participating agency must:

                     (a)  cause appropriate records to be kept:

                              (i)  while an authorisation is in force; and

                             (ii)  for at least 12 months after an authorisation has been revoked; and

                     (b)  cause those records to be audited:

                              (i)  at least once every 6 months while the authorisation is in force; and

                             (ii)  at least once in the 6 month period after the revocation of the authorisation.

          (1A)  An audit of these records must not be conducted by:

                     (a)  an authorising person who has issued, varied or revoked an authorisation to which one or more of the records relate; or

                     (b)  an approved officer or approved person who is covered by an authorisation to which one or more of the records relate.

             (2)  In this section:

appropriate records means records relating to the operation of this Part as it affects the participating agency, including any authorisations and any variations or revocations of those authorisations under section 15XK.

15XUA  Matters to be reported

Commonwealth participating agencies must report annually

             (1)  Each of the following Commonwealth participating agencies:

                     (a)  the Australian Security Intelligence Organisation;

                     (b)  the Australian Secret Intelligence Service;

must, as soon as practicable after 30 June in each year, prepare and give to the Inspector-General of Intelligence and Security a report for the year ending on that 30 June.

             (2)  Each other Commonwealth participating agency must, within 3 months after 30 June in each year, prepare and give to the Minister responsible for the agency a report for the year ending on that 30 June.

             (3)  The Minister receiving a report under subsection (2) must table a copy of the report before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

What reports must include

             (4)  An agency’s report must include the following information:

                     (a)  the number of authorisations issued by an authorising person from the agency during the year covered by the report;

                     (b)  a general description of the activities undertaken by approved officers and approved persons when using their assumed identities during the year covered by the report;

                     (c)  a statement whether or not any fraud or other unlawful activity was identified by an audit under paragraph 15XU(1)(b) during the year covered by the report.

             (5)  Before the report is tabled in the Parliament, the Minister must, on the advice of the relevant agency head, remove information from the report if the Minister is of the view that its inclusion may:

                     (a)  endanger a person’s safety; or

                     (b)  prejudice an investigation or prosecution; or

                     (c)  compromise the agency’s operational activities or methodologies.

15XV  Concurrent operation of State and Territory laws

                   It is the Parliament’s intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part.

15XW  Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Part to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Part.


 

Part IADProtection of children in proceedings for sexual offences

Division 1Introduction

15Y  Proceedings to which this Part applies

             (1)  This Part applies to any proceedings for:

                     (a)  an offence against Part IIIA of this Act (Child sex tourism); or

                     (b)  an offence against section 71.8 of the Criminal Code (Sexual assault of United Nations and associated personnel); or

                     (c)  an offence against Division 270 of the Criminal Code (Slavery, sexual servitude and deceptive recruiting); or

                  (caa)  an offence against Division 271 of the Criminal Code (trafficking in persons, trafficking in children, debt bondage); or

                    (ca)  an offence against section 474.26 or 474.27 of the Criminal Code (use of carriage service to procure or groom persons under 16 years of age); or

                     (d)  a sexual offence specified in the regulations; or

                     (e)  an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in paragraph (a), (b), (c), (caa) or (d); or

                      (f)  an offence of:

                              (i)  attempting to commit; or

                             (ii)  conspiring to commit; or

                            (iii)  inciting the commission of;

                            an offence of a kind referred to in paragraph (a), (b), (c), (caa), (d) or (e).

             (2)  This Part also applies to any proceedings, including committal proceedings or proceedings of a similar kind, connected with proceedings of a kind referred to in subsection (1).

15YA  Definitions

                   In this Part, unless the contrary intention appears:

child means a person who is under 18.

child complainant, in relation to a proceeding, means a child who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(1), to which the proceeding relates. The child need not be involved in the proceeding or the initiation of the proceeding.

child witness, in relation to a proceeding, means a child (including a child complainant) who is a witness in the proceeding.

closed-circuit television includes any similar technology specified in the regulations.

credibility has the meaning given by the Evidence Act 1995.

cross-examination has the meaning given by the Evidence Act 1995.

evidence in chief means evidence given in examination in chief within the meaning of the Evidence Act 1995.

proceeding means a proceeding to which this Part applies under section 15Y.


 

Division 2Admissibility of evidence

15YB  Evidence of sexual reputation

             (1)  Evidence of a child witness’ or child complainant’s reputation with respect to sexual activities is inadmissible in a proceeding, unless the court gives leave.

             (2)  The court must not give leave unless satisfied that the evidence is substantially relevant to facts in issue in the proceeding.

             (3)  The evidence is not to be treated as substantially relevant to facts in issue merely because of inferences it may raise as to the child witness’ or child complainant’s general disposition.

             (4)  If the evidence is admitted, it must not be treated as relevant to the child witness’ or child complainant’s credibility.

             (5)  This section does not apply if the child is a defendant in the proceeding.

15YC  Evidence of sexual experience

             (1)  Evidence of a child witness’ or child complainant’s experience with respect to sexual activities is inadmissible in a proceeding, unless:

                     (a)  the court gives leave; or

                     (b)  the evidence is of sexual activities with a defendant in the proceeding.

             (2)  The court must not give leave unless satisfied that:

                     (a)  the evidence is substantially relevant to facts in issue in the proceeding; or

                     (b)  if the evidence relates to the credibility of a child witness and is to be adduced in cross-examination of the child—the evidence has substantial probative value.

             (3)  The evidence is not to be treated as being substantially relevant to facts in issue merely because of inferences it may raise as to the child witness’ or child complainant’s general disposition.

             (4)  Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

                     (a)  whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

                     (b)  the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

             (5)  This section does not apply if the child is a defendant in the proceeding.

15YD  Leave under this Division

             (1)  An application for leave under this Division:

                     (a)  must be in writing; and

                     (b)  if there is a jury in the proceeding in question—must be made in the jury’s absence; and

                     (c)  must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

             (2)  If the court gives leave under this Division, the court must:

                     (a)  state its reasons in writing; and

                     (b)  cause those reasons to be entered in the court’s records.


 

Division 3Cross-examination

15YE  Disallowing inappropriate or aggressive cross-examination

             (1)  The court may disallow a question put to a child witness in cross-examination in a proceeding if the question is inappropriate or unnecessarily aggressive.

             (2)  In considering whether a question is inappropriate or unnecessarily aggressive, the court is to have regard to the child witness’ personal characteristics, including his or her age, culture, mental capacity and gender.

15YF  Unrepresented defendants—cross-examination of child complainants

             (1)  A defendant in a proceeding who is not represented by counsel is not to cross-examine a child complainant.

             (2)  A person appointed by the court is to ask the child any questions that the defendant requests the person to ask the child.

15YG  Unrepresented defendants—cross-examination of child witnesses

             (1)  A defendant in a proceeding who is not represented by counsel is not to cross-examine a child witness (other than a child complainant), unless the court gives leave.

             (2)  The court must not give leave unless satisfied that the child’s ability to testify under cross-examination will not be adversely affected if the defendant conducts the cross-examination.

             (3)  In considering whether that ability will be adversely affected, the court is to have regard to any trauma that could be caused if the defendant conducts the cross-examination.

             (4)  An application for leave under this section:

                     (a)  must be in writing; and

                     (b)  must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

             (5)  If the court refuses leave, a person appointed by the court is to ask the child any questions that the defendant requests the person to ask the child.

15YH  Represented defendants—cross-examination of child witnesses and child complainants

                   A defendant in a proceeding who is represented by counsel is not to cross-examine a child witness or a child complainant except through counsel.


 

Division 4Special facilities for child witnesses to give evidence

15YI  Closed-circuit television

             (1)  A child witness’ evidence in a proceeding must be given by means of closed-circuit television unless:

                     (a)  the child is at least 16 and chooses not to give evidence by that means; or

                     (b)  the court orders that the child is not to give evidence by that means; or

                     (c)  the court is not equipped with facilities for evidence to be given by means of closed-circuit television.

Note:          Section 15YL provides for alternative arrangements if a child witness does not give evidence by means of closed-circuit television.

             (2)  The court must not make an order under paragraph (1)(b) unless satisfied that it is not in the interests of justice for the child witness’ evidence to be given by means of closed-circuit television.

             (3)  This section does not affect the operation of any law in relation to the competence of a person to give evidence.

15YJ  Giving evidence by closed-circuit television

             (1)  If the child witness’ evidence is given by means of closed-circuit television from a location outside a courtroom:

                     (a)  that location is taken to be part of the courtroom in which the proceeding is being held; and

                     (b)  the court may order that a court officer be present at that location; and

                     (c)  the court may order that another person be present with the child:

                              (i)  to act as an interpreter; or

                             (ii)  to assist the child with any difficulty in giving evidence associated with a disability; or

                            (iii)  to provide the child with other support.

             (2)  An order under paragraph (1)(b) or (c) does not limit the operation of section 15YM.

             (3)  The court may adjourn the proceeding, or a part of the proceeding, to a court or other place that is equipped with facilities for evidence to be given by means of closed-circuit television if:

                     (a)  the court is not equipped with facilities for evidence to be given by means of closed-circuit television; or

                     (b)  the court otherwise considers it appropriate to do so.

15YK  Viewing evidence given by closed-circuit television

                   If the child witness’ evidence is given by means of closed-circuit television, the facilities used are to be operated in such a way that the people who have an interest in the proceeding can see the child, and any person present with the child, on one or more television monitors.

15YL  Alternative arrangements for giving evidence

             (1)  If a child witness’ evidence in a proceeding is not to be given by means of closed-circuit television, the court:

                     (a)  must make arrangements in order to restrict contact (including visual contact) that the child may have with any defendant while giving evidence; and

                     (b)  may make arrangements in order to restrict contact (including visual contact) that the child may have with members of the public while giving evidence.

             (2)  The arrangements may include either of the following:

                     (a)  using screens;

                     (b)  planning seating arrangements for people who have an interest in the proceeding, including:

                              (i)  the level at which they are seated; and

                             (ii)  the people in the child’s line of vision.

             (3)  This section does not apply if the child is at least 16 and chooses not to give evidence under the arrangements.


 

Division 5Use of video recordings

15YM  Use of video recordings

             (1)  A video recording of an interview of a child witness in a proceeding may be admitted as evidence in chief if:

                     (a)  a constable, or a person of a kind specified in the regulations, conducted the interview; and

                     (b)  the court gives leave.

             (2)  The court must not give leave if satisfied that it is not in the interest of justice for the child’s evidence in chief to be given by a video recording.

             (3)  An application for leave under this section:

                     (a)  must be in writing; and

                     (b)  must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

             (4)  The child witness must be available for cross-examination and re-examination if he or she gives evidence in chief by a video recording.

Note:          Division 4 provides for this evidence to be given using closed-circuit television or other arrangements.

15YN  Admissibility of evidence given using video recordings

             (1)  The admissibility of the evidence given by video recording is not affected by the fact that it is evidence of previous representations that the child witness made in the interview that was being recorded.

             (2)  Evidence given by video recording under section 15YM is not admissible if the court is satisfied that:

                     (a)  any defendant in the proceeding (other than the child witness if the child is a defendant); or

                     (b)  the defendant’s lawyer (if any);

was not given a reasonable opportunity to listen to and view the recording.

             (3)  The court may refuse to admit the whole or part of the contents of a recording adduced as evidence under section 15YM.


 

Division 6Miscellaneous

15YO  Adults accompanying child witnesses

             (1)  A child witness may choose an adult to accompany the child while the child is giving evidence in a proceeding (including while giving evidence by closed-circuit television).

             (2)  The adult so chosen may accompany the child as mentioned in subsection (1), unless the court determines that it is not appropriate for the adult to accompany the child.

             (3)  The court may permit more than one adult to accompany the child if the court considers it in the interests of justice to do so.

             (4)  An adult accompanying the child under this section must not:

                     (a)  prompt the child or otherwise influence the child’s answers; or

                     (b)  disrupt the questioning of the child.

             (5)  Any words spoken by an adult accompanying the child under this section must be able to be heard by:

                     (a)  the judge; and

                     (b)  if there is a jury in the proceeding—the members of the jury.

15YP  Exclusion of people from the courtroom

                   The court may order that some or all of the members of the public be excluded from the courtroom in which a child witness is giving evidence in a proceeding.

15YQ  Warnings etc. not to be given about children’s evidence

                   If there is a jury in a proceeding in which a child witness has given or will give evidence, the judge is not to warn the jury, or suggest to the jury in any way:

                     (a)  that the law regards children as an unreliable class of witness; or

                     (b)  that the law requires greater or lesser weight to be given to evidence that is given by closed-circuit television or alternative arrangements under Division 4; or

                     (c)  that the law requires greater or lesser weight to be given to evidence that is given by a video recording under Division 5; or

                     (d)  that the law requires greater or lesser weight to be given to evidence because an adult accompanies the child under section 15YO.

15YR  Publication identifying child witnesses or child complainants

             (1)  A person commits an offence if:

                     (a)  the person publishes any matter; and

                     (b)  the person does not have the leave of the court to publish the matter; and

                     (c)  the matter:

                              (i)  identifies another person (who is not a defendant in the proceeding) as a child witness or a child complainant in relation to the proceeding; or

                             (ii)  is likely to lead to the other person being identified as such a child witness or child complainant.

Penalty:  Imprisonment for 12 months, or 60 penalty units, or both.

             (2)  This section does not apply if the publication is in:

                     (a)  an official publication in the course of, and for the purpose of, the proceeding; or

                     (b)  a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a proceeding within the meaning of this Part).

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  The court may give leave to a person to publish the matter.

             (4)  In deciding whether to give leave, the court is to have regard to:

                     (a)  any trauma to the child witness or child complainant that the publication could cause; and

                     (b)  any damage to the reputation of the child witness or child complainant that the publication could cause; and

                     (c)  whether the publication is:

                              (i)  for the purpose of supplying transcripts of the proceedings to persons with a genuine interest in the proceedings; or

                             (ii)  for genuine research purposes.

             (5)  Leave may be given after the proceedings have finished. For this purpose, the court need not be constituted by the same judicial officers who constituted the court in the proceedings.

             (6)  An application for leave under this section:

                     (a)  must be in writing; and

                     (b)  must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

15YS  General powers of a court

             (1)  The power of a court to control the conduct of a proceeding is not affected by this Part, except so far as this Part provides otherwise expressly or by necessary intendment.

             (2)  In particular, the powers of a court to control the questioning of witnesses are not affected.

             (3)  The power of a court to give leave under this Part includes the power to give such leave subject to conditions.

15YT  Division 5 of Part IIIA unaffected

                   Nothing in this Part affects the operation of Division 5 of Part IIIA (Child sex tourism—video link evidence).


 

Part IBSentencing, imprisonment and release of federal offenders

Division 1Interpretation

16  Interpretation

             (1)  In this Part, unless the contrary intention appears:

aggregate, in relation to 2 or more sentences or terms of imprisonment, or in relation to the unserved portions of such sentences or terms, means the total effective sentence or term of imprisonment imposed, or remaining unserved, as the case may be, having regard to whether the sentences or terms are to be served cumulatively, partly cumulatively or concurrently.

Examples demonstrating meaning of aggregate            

Example 1:    The aggregate of 3 sentences, each of 2 years, to be served concurrently, is 2 years.

Example 2:    The aggregate of 3 sentences, each of 2 years, where 2 sentences are to be served concurrently and one is to be served cumulatively, is 4 years.

Example 3:    The aggregate of a one year unserved portion of a sentence, a 2 year unserved portion of another sentence, to be served concurrently with the first sentence, and a 2 year sentence to be served cumulatively, is 4 years.

federal court means the High Court or a court created by the Parliament, other than a court of a Territory.

federal offence means an offence against the law of the Commonwealth.

federal offender means a person convicted of a federal offence.

federal sentence means a sentence imposed for a federal offence.

fit to be tried includes fit to plead.

law, in relation to the Commonwealth, a State or a Territory, includes the common law, and any Imperial Act or order, that comprises a part of that law.

licence means a licence granted under section 19AP.

licence period, in relation to a person who is released on licence, means:

                     (a)  where the person has not been given a federal life sentence—the period commencing on the day of release on licence and ending:

                              (i)  if the last day of any federal sentence that is, on the day of the release, being served or to be served, after deducting any remission or reduction that is applicable, occurs earlier than 5 years after the day of release on licence—at the end of that last day; or

                             (ii)  in any other case—at the end of the day that occurs 5 years after the day of release on licence; and

                     (b)  where the person has been given a federal life sentence—the period commencing on the day of release on licence and ending at the end of the day specified in the licence as the day on which the licence period ends.

maximum penalty, in relation to an offence at common law, means imprisonment for life.

non-parole period, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.

offence means a federal offence, a State offence or a Territory offence.

offender means a federal offender, a State offender or a Territory offender.

parole includes probation.

parole officer means:

                     (a)  an officer of a State, the Australian Capital Territory, the Northern Territory or Norfolk Island in respect of whom there applies:

                              (i)  an arrangement in force under paragraph 21F(1)(b); or

                             (ii)  an arrangement having a substantially similar effect in force under section 3B; or

                     (b)  a person appointed or engaged under the Public Service Act 1999 in respect of whom an appointment under subsection 21F(3) is in force.

parole order means an order under subsection 19AL(1) or (2).

parole period, in relation to a person who is released on parole under section 19AL, means:

                     (a)  where the person has not been given a federal life sentence—the period commencing on the day of release on parole and ending:

                              (i)  if the last day of any federal sentence that is, on the day of the release, being served or to be served, after deducting any remission or reduction that is applicable, occurs earlier than 5 years after the day of release on parole—at the end of that last day; or

                             (ii)  in any other case—at the end of the day that occurs 5 years after the day of release on parole; and

                     (b)  where the person has been given a federal life sentence—the period commencing on the day of release on parole and ending at the end of the day specified in the parole order as the day on which the parole period ends.

pre-release period, in relation to a recognizance release order made in respect of a federal sentence or sentences, means the period of imprisonment specified in that order as the period of imprisonment in respect of that sentence or those sentences after service of which the offender may be released on the giving of security in accordance with that order.

prescribed authority means:

                     (a)  a person who holds office as a Magistrate of a State, the Australian Capital Territory, the Northern Territory or Norfolk Island and in respect of whom an arrangement in force under paragraph 21F(1)(a) is applicable; or

                     (b)  a person who holds office as a Magistrate of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

                     (c)  unless an arrangement has been entered into under paragraph 21F(1)(a) in respect of persons holding office as Magistrates of the Australian Capital Territory—a person who holds office as a Magistrate of the Australian Capital Territory.

prison includes gaol, lock-up or other place of detention.

recognizance release order means an order made under paragraph 20(1)(b).

released on licence means released from prison under section 19AP.

released on parole means released from prison under section 19AL.

sentence, in sections 16B to 19AZD, means a sentence of imprisonment.

State includes the Australian Capital Territory and the Northern Territory.

State offence means an offence against the law of a State.

State offender means a person convicted of a State offence.

State sentence means a sentence imposed for a State offence.

supervision period, in relation to a person who is released on parole or on licence, means:

                     (a)  where the person has not been given a federal life sentence—the period commencing on the day of release on parole or licence and ending at the end of a day specified in the parole order or licence as the day on which the supervision period ends, being a day not later than:

                              (i)  if the last day of any federal sentence of imprisonment that is, on the day of the release, being served or to be served, after deducting any remission or reduction that is applicable, occurs earlier than 3 years after the day of release on parole or licence—that last day; or

                             (ii)  in any other case—the day that occurs 3 years after the day of release on parole or licence; and

                     (b)  where the person has been given a federal life sentence—the period commencing on the day of release on parole or licence and ending at the end of the day specified in the parole order or licence as the day on which the supervision ends, being a day not later than the day on which the parole period or licence period ends.

Territory does not include the Australian Capital Territory or the Northern Territory.

Territory offence means an offence against the law of a Territory.

Territory offender means a person convicted of a Territory offence.

Territory sentence means a sentence imposed for a Territory offence.

unfit to be tried includes unfit to plead.

             (2)  In this Part, expressions in the plural do not imply that expressions in the singular do not include the plural.


 

Division 2General sentencing principles

16A  Matters to which court to have regard when passing sentence etc.

             (1)  In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

             (2)  In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

                     (a)  the nature and circumstances of the offence;

                     (b)  other offences (if any) that are required or permitted to be taken into account;

                     (c)  if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

                     (d)  the personal circumstances of any victim of the offence;

                     (e)  any injury, loss or damage resulting from the offence;

                      (f)  the degree to which the person has shown contrition for the offence:

                              (i)  by taking action to make reparation for any injury, loss or damage resulting from the offence; or

                             (ii)  in any other manner;

                     (g)  if the person has pleaded guilty to the charge in respect of the offence—that fact;

                     (h)  the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

                      (j)  the deterrent effect that any sentence or order under consideration may have on the person;

                     (k)  the need to ensure that the person is adequately punished for the offence;

                    (m)  the character, antecedents, cultural background, age, means and physical or mental condition of the person;

                     (n)  the prospect of rehabilitation of the person;

                     (p)  the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

             (3)  Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

16B  Court to have regard to other periods of imprisonment required to be served

                   In sentencing a person convicted of a federal offence, a court must have regard to:

                     (a)  any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

                     (b)  any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory.

16BA  Taking other offences into account

             (1)  Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:

                     (a)  there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;

                     (b)  the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;

                     (c)  the document has been signed:

                              (i)  by the Director of Public Prosecutions;

                             (ii)  for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or

                            (iii)  by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;

                            and by the person convicted;

                     (d)  a copy of the document has been given to the person; and

                     (e)  in all the circumstances it is proper to do so;

the court may, with the consent of the prosecutor and before passing sentence on the person, ask him whether he admits his guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him for the offence or offences of which he has been convicted.

             (2)  Subject to subsection (3), if the person admits his guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him for the offence or offences of which he has been convicted, the court may, if it thinks fit, in passing sentence on him for the offence or offences of which he has been convicted, take into account all or any of the offences in respect of which the person has admitted his guilt.

             (3)  The court shall not take into account under this section any indictable offence that it would not have jurisdiction to try even if the defendant consented to the court hearing and determining proceedings for the offence or the prosecutor requested the court to hear and determine those proceedings.

          (3A)  Subsection (3) does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence.

             (4)  Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his guilt, the sentence passed on him for any of the offences of which he has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him for the offence if no offence had been so taken into account.

             (5)  Where an offence is taken into account under this section, the court may make such orders with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court of the offence, but shall not otherwise impose any separate punishment for the offence.

             (6)  Where the court makes an order under subsection (5) in respect of an offence taken into account under this section, there shall be such rights of appeal in respect of the order as there would have been if the order had been an order made upon the conviction of the person for that offence.

             (7)  An order made under subsection (5) in respect of an offence taken into account under this section lapses, by force of this subsection, if the conviction or each conviction, as the case may be, in respect of which the offence was taken into account is quashed or set aside.

             (8)  Where an offence is taken into account under this section, the court shall certify, upon the document filed in the court, the offence taken into account and the conviction or convictions in respect of which the offence was taken into account and thereafter no proceedings shall be taken or continued in respect of the offence unless the conviction or each conviction, as the case may be, in respect of which the offence has been taken into account has been quashed or set aside.

             (9)  An admission of guilt made under and for the purposes of this section is not admissible in evidence in any proceedings taken or continued in respect of the offence in respect of which the admission was made or in respect of any other offence specified in the list contained in the document filed in the court.

           (10)  An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.

           (11)  In or in relation to any criminal proceeding, reference may lawfully be made to, or evidence may lawfully be given of, the fact that an offence was taken into account under this section in passing sentence for an offence for which a person was convicted if, in or in relation to that proceeding:

                     (a)  reference may lawfully be made to, or evidence may lawfully be given of, the fact that the person was convicted of the last-mentioned offence; and

                     (b)  had the person been convicted of the offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the person had been convicted of that offence.

           (12)  The fact that an offence was taken into account under this section may be proved in the same manner as the conviction or any of the convictions, as the case may be, in relation to which it was taken into account may be proved.

16C  Fines

             (1)  Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.

             (2)  Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court.

16D  No corporal punishment

             (1)  A court must not impose any form of corporal punishment for a federal offence.

             (2)  A person serving a federal sentence must not be subjected to any form of corporal punishment.


 

Division 3Sentences of imprisonment

16E  Commencement of sentences

             (1)  Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.

             (2)  Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:

                     (a)  may be reduced by the period that the person has been in custody for the offence; or

                     (b)  is to commence on the day on which the person was taken into custody for the offence;

the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.

             (3)  Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.

16F  Court to explain sentence

             (1)  Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period including, in particular, an explanation:

                     (a)  that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and

                     (b) that, if a parole order is made, the order will be subject to conditions; and

                     (c)  that the parole order may be amended or revoked; and

                     (d)  of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.

             (2)  Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation:

                     (a)  that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and

                     (b)  of the conditions to which the order is subject; and

                     (c)  of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and

                     (d)  that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

17A  Restriction on imposing sentences

             (1)  A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

             (2)  Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:

                     (a)  shall state the reasons for its decision that no other sentence is appropriate; and

                     (b)  shall cause those reasons to be entered in the records of the court.

             (3)  The failure of a court to comply with the provisions of this section does not invalidate any sentence.

             (4)  This section applies subject to any contrary intention in the law creating the offence.

17B  Restriction on imposing sentences for certain minor offences

             (1)  If:

                     (a)  a person is convicted of one or more section 17B offences relating to property, money or both, whose total value is not more than $2,000; and

                     (b)  the person has not previously been sentenced to imprisonment for any federal, State or Territory offence;

the court convicting the person is not to pass a sentence of imprisonment for that offence, or for any of those offences, unless the court is satisfied that there are exceptional circumstances that warrant it.

             (2)  In calculating the total value for the purposes of paragraph (1)(a), a section 17B offence which the court, with the consent of the person charged, has taken into account in passing sentence on the person for another federal offence (whether a section 17B offence or not) is taken to be an offence of which the person is convicted.

             (3)  In this section:

section 17B offence means an offence against section 29 of this Act, an offence against section 131.1, 132.1, 132.6, 132.7, 134.1, 134.2, 135.1, 135.2, 135.4, 145.4 or 145.5 of the Criminal Code or an offence against a provision of a federal law prescribed for the purposes of this section.

18  Sentence of imprisonment

             (1)  Where imprisonment is imposed in respect of any offence against any law of the Commonwealth it may (unless the contrary intention appears in the law) be imposed either with or without hard labour.

             (2)  Where under the law of a State or Territory a convicted person may in particular cases be imprisoned in a particular kind or class of prison, a person convicted of an offence against the law of the Commonwealth may, in corresponding cases, be imprisoned in the kind or class of prison appropriate to the circumstances.

19  Cumulative, partly cumulative or concurrent sentences

             (1)  Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:

                     (a)  no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

                     (b)  if a non-parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.

             (2)  Where:

                     (a)  a person is convicted of 2 or more federal offences at the same sitting; and

                     (b)  the person is sentenced to imprisonment for more than one of the offences;

the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.

             (3)  Where:

                     (a)  a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and

                     (b)  the person is sentenced to imprisonment for more than one of the offences;

the court must, by order, direct when each federal sentence commences but so that:

                     (c)  no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

                     (d)  if a non-parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.

             (4)  For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.

19A  Detention of person in State or Territory prisons

                   A federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender.

19AA  Remissions and reductions of sentences

             (1)  A law of a State or Territory that provides for the remission or reduction of State or Territory sentences (other than such part of the law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders) applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory, being a sentence imposed after the commencement of this section.

             (2)  Where a law of a State or Territory provides that a person is to be taken to be serving a State or Territory sentence during the period from the time of release under a parole order or licence (however called) until the parole order or licence is, or is taken to be, revoked, the law:

                     (a)  is, for the purposes of subsection (1), to be taken to be providing for the remission or reduction of sentences; and

                     (b)  applies to any calculation of the part of a federal sentence remaining to be served at the time of a federal offender’s release under a federal parole order or licence as if the sentence were a State or Territory sentence.

             (3)  Where a federal offender who is released on parole or licence and whose parole order or licence has subsequently been revoked does not get the benefit of subsection (2) in calculating the part of any federal sentence of imprisonment remaining to be served at the time of release:

                     (a)  a court fixing a new non-parole period in respect of such a person under section 19AR; or

                     (b)  a prescribed authority fixing a non-parole period in respect of such a person under section 19AW;

must have regard to the period of time spent by the person on parole or licence before that parole order or licence is revoked or is to be taken to have been revoked.

             (4)  A law of a State or Territory that provides for the remission or reduction, by reason of industrial action taken by prison warders, of the non-parole period of a State or Territory sentence applies in the same way to the remission or reduction:

                     (a)  of a federal non-parole period to be served in a prison in that State or Territory; and

                     (b)  of a federal pre-release period to be served in that State or Territory.


 

Division 4The fixing of non-parole periods and the making of recognizance release orders

19AB  When court must fix non-parole period or make a recognizance release order

             (1)  Subject to subsection (3), where:

                     (a)  a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

                     (b)  a court imposes on the person a federal life sentence, or a federal sentence that exceeds, or federal sentences that, in the aggregate, exceed 3 years; and

                     (c)  at the time the sentence or sentences are imposed, the person is not already serving or subject to a federal sentence;

the court must either:

                     (d)  fix a single non-parole period in respect of that sentence or those sentences; or

                     (e)  make a recognizance release order.

             (2)  Subject to subsection (3), where:

                     (a)  while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and

                     (b)  the result is that the person is to serve or to complete a federal life sentence or federal sentences the unserved portions of which, in the aggregate, exceed 3 years; and

                     (c)  at the time the further federal sentence is imposed, the person is not already subject to a non-parole period or recognizance release order in respect of a federal sentence;

the court imposing the further sentence must either:

                     (d)  fix a single non-parole period in respect of all federal sentences the person is to serve or complete; or

                     (e)  make a recognizance release order.

             (3)  Where, but for this subsection, a court would be required by this section to fix a non-parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate.

             (4)  Where the court decides that neither a non-parole period nor a recognizance release order is appropriate, the court must:

                     (a)  state its reasons for so deciding; and

                     (b)  cause the reasons to be entered in the records of the court.

19AC  When court must fix a recognizance release order

             (1)  Subject to subsections (3) and (4), where:

                     (a)  a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

                     (b)  the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and

                     (c)  at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;

the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period.

             (2)  Subject to subsections (3) and (4), where:

                     (a)  while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and

                     (b)  the result is that the person is to serve or to complete federal sentences the unserved portions of which do not exceed, in the aggregate, 3 years; and

                     (c)  at the time the further federal sentence is imposed, the person is not already subject to a recognizance release order in respect of a federal sentence;

the court imposing the further sentence must make a recognizance release order in respect of all federal sentences to be served or completed by the person and must not fix a non-parole period.

             (3)  Where:

                     (a)  the federal sentence or federal sentences referred to in paragraph (1)(b); or

                     (b)  the unserved portions of the federal sentences referred to in paragraph (2)(b);

in the aggregate, do not exceed 6 months, the court is not required to make a recognizance release order.

             (4)  Where, but for this subsection, a court would be required by this section to make a recognizance release order in respect of a person, the court may decline to do so if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that such an order is not appropriate.

             (5)  Where the court decides that a recognizance release order is not appropriate, the court must:

                     (a)  state its reasons for so deciding; and

                     (b)  cause the reasons to be entered in the records of the court.

19AD  Persons already subject to a non-parole period

             (1)  Where:

                     (a)  a non-parole period (in this section called the existing non-parole period) has been fixed in respect of a federal sentence or federal sentences; and

                     (b)  while the offender is serving the existing non-parole period, a court imposes a further federal sentence on the person;

this section applies.

             (2)  Where this section applies, the court must, after considering the relevant circumstances, including:

                     (a)  the existing non-parole period; and

                     (b)  the nature and circumstances of the offence or offences concerned; and

                     (c)  the antecedents of the person;

do one of the following things:

                     (d)  make an order confirming the existing non-parole period;

                     (e)  fix a new single non-parole period in respect of all federal sentences the person is to serve or complete;

                      (f)  where the court decides that, in the circumstances, a non-parole period is not appropriate—cancel the existing non-parole period and decline to fix a new non-parole period.

             (3)  Where, under paragraph (2)(e), the court fixes a new single non-parole period, it:

                     (a)  is to be treated as having superseded the existing non-parole period; and

                     (b)  must not be such as to allow the person to be released on parole earlier then would have been the case if the further sentence had not been imposed.

             (4)  Where this section applies, the court must not make a recognizance release order.

             (5)  Where, under paragraph (2)(f), the court declines to fix a new non-parole period, the court must:

                     (a)  state its reasons for deciding that a non-parole period is not appropriate; and

                     (b)  cause the reasons to be entered in the records of the court.

19AE  Persons already subject to recognizance release order

             (1)  Where:

                     (a)  a person is subject to a recognizance release order (in this section called the existing recognizance release order) made in respect of a federal sentence or federal sentences; and

                     (b)  before the person is released under that order, the court imposes a further federal sentence on the person;

this section applies.

             (2)  Where this section applies, the court must, after considering the relevant circumstances, including:

                     (a)  the existing recognizance release order; and

                     (b)  the nature and circumstances of the offence or offences concerned; and

                     (c)  the antecedents of the person;

do one of the following things:

                     (d)  make an order confirming the existing recognizance release order;

                     (e)  make a new recognizance release order in respect of all federal sentences the person is to serve or complete;

                      (f)  where, as a result of the further federal sentence being imposed, the person is to serve or to complete a federal life sentence or federal sentences the unserved portions of which, in the aggregate, exceed 3 years and the court decides that it is appropriate to fix a non-parole period—fix a single non-parole period in respect of all federal sentences the person is to serve or complete;

                     (g)  where the court decides that, in the circumstances, neither a recognizance release order nor a non-parole period is appropriate—cancel the existing recognizance release order and decline to make a new recognizance release order.

             (3)  Where, under paragraph (2)(e), the court makes a new recognizance release order, that order:

                     (a)  is to be treated as having superseded the existing recognizance release order; and

                     (b)  must not be such as to allow the person to be released earlier than would have been the case if the further sentence had not been imposed.

             (4)  Where, under paragraph (2)(f), the court fixes a single non-parole period, it:

                     (a)  is to be treated as having superseded the existing recognizance release order; and

                     (b)  must not be such as to allow the person to be released on parole earlier than he or she would have been released if the further sentence had not been imposed.

             (5)  Where, under paragraph (2)(g), the court declines to make a new recognizance release order, the court must:

                     (a)  state its reasons for deciding that neither a recognizance release order nor a non-parole period is appropriate; and

                     (b)  cause the reasons to be entered in the records of the court.

19AF  Non-parole period or pre-release periods not to exceed remitted sentence

             (1)  Where a court is required to fix a non-parole period or make a recognizance release order in respect of a federal sentence or sentences, the court must fix a non-parole period that ends, or make a recognizance release order such that the pre-release period ends, not later than the end of the sentence, or of the last to be served of the sentences, as reduced by any remissions or reductions under section 19AA.

             (2)  This section does not restrict the length of the non-parole period or the pre-release period in respect of a life sentence or sentences that include such a sentence.

19AG  Non-parole periods for sentences for certain offences

             (1)  This section applies if a person is convicted of one of the following offences (each of which is a minimum non-parole offence) and a court imposes a sentence for the offence:

                     (a)  an offence against section 24AA;

                     (b)  a terrorism offence;

                     (c)  an offence against Division 80 or 91 of the Criminal Code.

Note:          A sentence for a minimum non-parole offence is a federal sentence, because such an offence is a federal offence.

             (2)  The court must fix a single non-parole period of at least 3/4 of:

                     (a)  the sentence for the minimum non-parole offence; or

                     (b)  if 2 or more sentences have been imposed on the person for minimum non-parole offences—the aggregate of those sentences.

The non-parole period is in respect of all federal sentences the person is to serve or complete.

             (3)  For the purposes of subsection (2):

                     (a)  a sentence of imprisonment for life for a minimum non-parole offence is taken to be a sentence of imprisonment for 30 years for the offence; and

                     (b)  it does not matter:

                              (i)  whether or not the sentences mentioned in that subsection were imposed at the same sitting; or

                             (ii)  whether or not the convictions giving rise to those sentences were at the same sitting; or

                            (iii)  whether or not all the federal sentences mentioned in that subsection are for minimum non-parole offences.

             (4)  If the person was subject to a recognizance release order, the non-parole period supersedes the order.

             (5)  Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to this section.

Note:          The effects of this include preventing a court from:

(a)           making a recognizance release order under paragraph 19AB(1)(e) or (2)(e), 19AE(2)(e) or 19AR(2)(e); or

(b)           confirming (under paragraph 19AD(2)(d)) a pre-existing non-parole period; or

(c)           confirming (under paragraph 19AE(2)(d)) a recognizance release order; or

(d)           declining (under subsection 19AB(3) or 19AC(1) or (2) or paragraph 19AD(2)(f)) to fix a non-parole period.

19AH  Failure to fix non-parole period or make recognizance release order

             (1)  Where a court fails to fix, or properly to fix, a non-parole period, or to make, or properly to make, a recognizance release order, under this Act:

                     (a)  that failure does not affect the validity of any sentence imposed on a person; and

                     (b)  the court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, set aside any non-parole period or recognizance release order that was not properly fixed or made and fix a non-parole period or make a recognizance release order under this Act.

             (2)  A court shall not, for the purposes of subsection (1), be taken to have failed to fix a non-parole period in respect of a sentence or sentences in respect of which it has made a recognizance release order or to have failed to make a recognizance release order in respect of a sentence or sentences in respect of which it has fixed a non-parole period.

             (3)  Application under subsection (1) to the court that has sentenced a person may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the person was sentenced.

19AJ  Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment

                   This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.

19AK  Possible deportation no impediment to fixing non-parole period

                   Where a person is convicted of a federal offence, a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia.


 

Division 5Conditional release on parole or licence

19AL  Release on parole

             (1)  Subject to section 19AM, where there has been imposed on a person a federal sentence of, or federal sentences aggregating, more than 3 years but less than 10 years and a non-parole period has been fixed in relation to the sentence or sentences, the Attorney-General must, by order in writing, direct that the person be released from prison on parole:

                     (a)  at the end of the non-parole period; or

                     (b)  if the Attorney-General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non-parole period.

             (2)  Subject to section 19AM, where there has been imposed on a person a federal life sentence or a federal sentence of, or federal sentences aggregating, 10 years or more and a non-parole period has been fixed in relation to the person in respect of the sentence or sentences, the Attorney-General must, by order in writing:

                     (a)  direct that the person be released from prison on parole:

                              (i)  at the end of the non-parole period; or

                             (ii)  if the Attorney-General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non-parole period; or

                     (b)  direct that the person is not to be released on parole at, or at any time before, the end of the non-parole period.

             (3)  An order directing that a person not be released at, or at any time before, the end of the non-parole period:

                     (a)  must not be made later than 3 months before the end of the non-parole period; and

                     (b)  must include a statement of reasons why the order was made; and

                     (c)  if the Attorney-General proposes to reconsider, at a later time, the question of the release of the person on parole—must indicate when the Attorney-General proposes to reconsider the question;

and a copy of the order must be given to the person within 14 days after it was made.

             (4)  A parole order in relation to a federal sentence:

                     (a)  if the sentence is imprisonment for life in respect of that federal offence or any of those federal offences—must specify the day on which the parole period ends, being a day not earlier than 5 years after the person is released on parole; and

                     (b)  if it is proposed that, for any part of the parole period, the person should be subject to supervision—must specify the day on which the supervision period ends, being a day fixed in accordance with the requirements of the definition of supervision period in subsection 16(1).

             (5)  A parole order directing that a person be released from prison is sufficient authority for the release if, and only if, the person indicates, in writing, his or her acceptance of the conditions to which the order is subject by certifying to that effect either on the original parole order or on a copy of that order.

19AM  Person not to be released on parole if still serving State or Territory sentence

             (1)  Where:

                     (a)  at the time when a federal non-parole period (not being in respect of a life sentence) ends, the offender is serving, or is to serve, a State or Territory sentence (other than a life sentence for which a non-parole period has not been fixed); and

                     (b)  if a federal parole order were made at that time, the parole period would end while the offender would still be imprisoned in respect of the State or Territory offence;

the parole order must not be made.

             (2)  Where:

                     (a)  at the time when a federal non-parole period (not being in respect of a life sentence) ends, the offender is serving, or is to serve, a State or Territory sentence (other than a life sentence for which a non-parole period has not been fixed); and

                     (b)  if a federal parole order were made at that time, the parole period would end after the offender was released, or released on parole, in respect of the State or Territory offence;

the Attorney-General must make the parole order, but it does not take effect before the offender is eligible to be so released.

             (3)  Where, at the time when a federal non-parole period in respect of a life sentence, or sentences that include a life sentence, ends, the offender is serving, or is to serve, a State or Territory sentence (other than a life sentence for which a non-parole period has not been fixed), the Attorney-General must not make a parole order such that the parole period would end while the offender would still be imprisoned in respect of the State or Territory offence.

             (4)  Where, at the time when a federal non-parole period ends, the offender is serving, or is to serve, a State or Territory life sentence for which a non-parole period has not been fixed, a federal parole order must not be made.

19AN  Parole order is subject to conditions

             (1)  A parole order under section 19AL:

                     (a)  is subject to the condition that the offender must, during the parole period, be of good behaviour and not violate any law; and

                     (b)  if, under subsection 19AL(4), the day on which a supervision period ends is fixed in the parole order—is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a parole officer or other person specified in the order and obey all reasonable directions of that officer or other person; and

                     (c)  is subject to such other conditions (if any) as the Attorney-General specifies in the order.

             (2)  The Attorney-General may, at any time before the end of the parole period, by order in writing, amend a parole order by varying or revoking a condition of the parole order or by imposing additional conditions in the parole order.

             (3)  An amendment of the parole order does not have effect until notice in writing of the amendment is given to the offender, being notice given before the end of the parole period.

19AP  Release on licence

             (1)  Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison.

             (2)  A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person’s behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison.

             (3)  An application under subsection (2) must:

                     (a)  be in writing; and

                     (b)  specify the exceptional circumstances relied on to justify the grant of the licence.

             (4)  The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.

             (5)  The Attorney-General is not required to consider an application under subsection (2) in respect of a person if an application has been made under that subsection in respect of that person within one year before the first-mentioned application.

             (6)  A licence in relation to a person:

                     (a)  if the person is subject to a federal life sentence—must specify the day on which the licence period ends, being a day not earlier than 5 years after the person is released on licence; and

                     (b)  if it is proposed that, for any part of the licence period, the person should be subject to supervision—must specify the day on which the supervision period ends, being a day fixed in accordance with the requirements of the definition of supervision period in subsection 16(1).

             (7)  A licence:

                     (a)  is subject to the condition that the offender must, during the licence period, be of good behaviour and not violate any law; and

                     (b)  if, under subsection (6), the day on which a supervision period ends is fixed in the licence—is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a person specified in the licence and obey all reasonable directions of that person; and

                     (c)  is subject to such other conditions (if any) as the Attorney-General specifies in the licence.

             (8)  The Attorney-General may, at any time before the end of the licence period, by order in writing, amend a licence by varying or revoking a condition of a licence or by imposing additional conditions on a licence or by any or all of those means.

             (9)  An amendment of a licence does not have effect until notice of the amendment is given to the offender, being notice given before the end of the licence period.

           (10)  A licence directing that the offender be released from prison is sufficient authority for the release.

19AQ  When parole order or licence automatically revoked

             (1)  Where a person to whom a parole order relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the parole period, the parole order is to be taken to have been revoked upon the imposition of the sentence or sentences.

             (2)  If, at the time of imposition of the sentence or sentences, the federal parole period has already ended, the parole order is to be taken to have been revoked as from the time immediately before the end of the parole period.

             (3)  Where a person to whom a licence relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the licence period, the licence is to be taken to have been revoked upon the imposition of the sentence or sentences.

             (4)  If, at the time of imposition of the sentence or sentences, the licence period has already ended, the licence is to be taken to have been revoked as from the time immediately before the end of the licence period.

             (5)  Where the parole order or licence relating to a person is revoked under subsection (1) or (3), the person becomes liable to serve that part of the sentence or each sentence for a federal offence that the person had not served at the time of his or her release under that order or licence, subject to the operation of subsection 19AA(2) and subject (except in the case of a life sentence) to any further remission or reduction of that sentence.

             (6)  This section does not apply where the sentence or each sentence referred to in subsection (1) or (3) is a suspended sentence.

19AR  Fixing of non-parole period etc. where parole or licence automatically revoked

             (1)  Where:

                     (a)  a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and

                     (b)  the person is later sentenced to life imprisonment or to a term of imprisonment of, or terms of imprisonment aggregating, more than 3 years in respect of a federal offence or federal offences committed during the parole period or licence period; and

                     (c)  under section 19AQ, because of the imposition of the sentence or sentences referred to in paragraph (b) (in this subsection called the new sentence or sentences):

                              (i)  the parole order or licence is to be taken to have been revoked; and

                             (ii)  the person becomes liable to serve that part of each of the sentences referred to in paragraph (a) (in this subsection called the outstanding sentence or sentences) that the person had not served at the time of release;

the court imposing the new sentence or sentences must fix a single new non-parole period in respect of the new sentence or sentences and the outstanding sentence or sentences having regard to the total period of imprisonment that the person is liable to serve.

             (2)  Where:

                     (a)  a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and

                     (b)  the person is later sentenced to a term of imprisonment of, or terms of imprisonment aggregating, 3 years or less in respect of a federal offence or federal offences committed during the parole period or licence period; and

                     (c)  under section 19AQ, because of the imposition of the sentence or sentences referred to in paragraph (b) (in this subsection called the new sentence or sentences):

                              (i)  the parole order or licence is to be taken to have been revoked; and

                             (ii)  the person becomes liable to serve that part of each of the sentences referred to in paragraph (a) (in this subsection called the outstanding sentence or sentences) that the person had not served at the time of release;

then:

                     (d)  if one of the outstanding sentences is a sentence of life imprisonment or the new sentence or sentences and the unserved part of the outstanding sentence or sentences aggregate more than 3 years—the court imposing the new sentence or sentences must fix a single new non-parole period in respect of the new sentence or sentences and the outstanding sentence or sentences; and

                     (e)  if the new sentence or sentences and the unserved part of the outstanding sentence or sentences aggregate 3 years or less—the court imposing the new sentence or sentences must not fix a non-parole period but may make a recognizance release order in respect of the new sentence or sentences and the outstanding sentence or sentences;

and, in doing so, the court must have regard to the total period of imprisonment that the person is liable to serve.

             (3)  Where:

                     (a)  a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and

                     (b)  the person is later sentenced to a term or terms of imprisonment in respect of one or more State or Territory offences committed during the parole period or licence period; and

                     (c)  under section 19AQ, because of the imposition of the sentence or sentences referred to in paragraph (b) (in this subsection called the new sentence or sentences):

                              (i)  the parole order or licence is to be taken to have been revoked; and

                             (ii)  the person becomes liable to serve that part of each of the sentences referred to in paragraph (a) (in this subsection called the outstanding sentence or sentences) that the person had not served at the time of release;

then:

                     (d)  if one of the outstanding sentences is a life sentence or the unserved part of the outstanding sentence or sentences is or aggregates more than 3 years—the court imposing the new sentence or sentences must fix a single new non-parole period in respect of the outstanding sentence or sentences; and

                     (e)  if the unserved part of the outstanding sentence or sentences is or aggregates 3 years or less—the court imposing the new sentence or sentences must not fix a non-parole period but may make a recognizance release order in respect of the outstanding sentence or sentences.

             (4)  Where, but for this subsection, the court would be required by subsection (1), (2) or (3) to fix a non-parole period, the court is not required to do so if it is satisfied, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the offender, that it is not appropriate to do so.

             (5)  Where a court decides, under this section, that it is inappropriate either to fix a non-parole period, or to make a recognizance release order, the court:

                     (a)  must state its reasons for so deciding; and

                     (b)  must cause these reasons to be entered in the records of the court.

             (6)  Without limiting, by implication, the application of any other provision of Division 4, sections 19AF, 19AJ and 19AK apply, according to their terms, in relation to the fixing of non-parole periods or the making of recognizance release orders under this section in the same way as they apply to the fixing of such periods or the making of such orders under Division 4.

             (7)  Without limiting, by implication, the application of any other provision of Division 4, section 19AH applies, according to its terms, in relation to the failure to fix, or properly to fix, non-parole periods or the failure to make, or properly to make, recognizance release orders under this section in the same way as it applies to such failures in relation to the fixing of such periods or the making of such orders under Division 4.

19AS  Court to issue warrant of detention where person required to serve balance of sentence

             (1)  Where:

                     (a)  a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and

                     (b)  under section 19AQ, because of the imposition of one or more federal, State or Territory sentences (in this subsection called the new sentence or sentences):

                              (i)  that parole order or licence is to be taken to have been revoked; and

                             (ii)  the person becomes liable to serve that part of each of the sentences referred to in paragraph (a) (in this subsection called the outstanding sentence or sentences) that he or she had not served at the time of release;

then:

                     (c)  the court imposing the new sentence or sentences must issue a warrant authorising the person to be detained in prison to undergo imprisonment for the unserved part of the outstanding sentence or sentences; and

                     (d)  the person must begin to serve the unserved part of the outstanding sentence or of the first to be served of the outstanding sentences on the day that the new sentence is, or the new sentences are, imposed; and

                     (e)  the unserved part of the outstanding sentence or of each of the outstanding sentences must be served in the State or Territory where the new sentence is, or the new sentences are, imposed.

             (2)  Where the court fails to issue a warrant under paragraph (1)(c), the Director of Public Prosecutions may apply to that court for such a warrant.

19AT  What happens when later conviction is quashed?

             (1)  Where:

                     (a)  a person who is serving or is to serve a federal sentence or sentences of imprisonment is released on parole or licence under this Act; and

                     (b)  under section 19AQ, because of the imposition of one or more federal, State or Territory sentences (in this subsection called the new sentence or sentences):

                              (i)  that parole order or licence is to be taken to have been revoked; and

                             (ii)  the person becomes liable to serve that part of each of the sentences referred to in paragraph (a) (in this subsection called the outstanding sentence or sentences) that he or she had not served at the time of release;

then:

                     (c)  if the person appeals against the conviction or each conviction giving rise to a new sentence and is granted bail, pending the hearing of the appeal or appeals:

                              (i)  this Act has effect, pending the hearing of that appeal or those appeals, as if the revoked order or licence had not been revoked and as if any warrant for the detention of the person issued under section 19AS were of no effect; and

                             (ii)  the person must be released from prison on the day the person is granted bail; and

                     (d)  if the appeal court sets aside the conviction or each of the convictions and the person concerned is granted bail or bail is extended pending a retrial of the offence or offences concerned:

                              (i)  this Act has effect, or continues to have effect, pending the completion of the retrial, as if the revoked order or licence had not been revoked and as if any warrant for the detention of the person issued under section 19AS were of no effect; and

                             (ii)  if the person had not already been released from prison under paragraph (c), the person is to be released on the day the person is granted bail or bail is extended; and

                     (e)  if the conviction or each conviction appealed against is quashed on appeal or the person is found, on a retrial, not to be guilty of the offence or each of the offences:

                              (i)  this Act has effect, or continues to have effect, as if the revoked order or licence had not been revoked and as if any warrant for the detention of the person issued under section 19AS were of no effect; and

                             (ii)  if the person had not already been released from prison under paragraph (c) or (d), the person must be released from prison on the day the conviction or each conviction is quashed on appeal or the person is found, on a retrial not to be guilty of the offence or offences; and

                      (f)  if paragraph (c), (d) or (e) applies—the unserved part of the outstanding sentence or sentences shall (except in the case of an outstanding sentence of life imprisonment) be reduced by the period spent in prison after the day the new sentence is or the new sentences are imposed and before the day of the person’s release on bail or, if the person is not so released, before the resolution of the appeal.

             (2)  If the appeal against the conviction or each conviction giving rise to a new sentence is unsuccessful, section 19AS applies, with effect from the day the appeal proceedings are completed, as if the new sentence or new sentences were imposed on that day by the court to which the appeal was made.

             (3)  Nothing in subsection (1) prevents a person from being detained in prison under any other law.

19AU  Attorney-General may revoke parole order or licence

             (1)  The Attorney-General may, by instrument in writing, revoke a parole order or licence at any time before the end of the parole period or licence period:

                     (a)  if the offender has, during that period, failed to comply with a condition of the order or licence; or

                     (b)  if there are reasonable grounds for suspecting that the offender has, during that period, so failed to comply;

and the instrument of revocation must specify the condition that was breached or is suspected of having been breached.

             (2)  Before revoking a parole order or a licence, the Attorney-General must, subject to subsection (3), by notice in the prescribed form, notify the person to whom the order or licence relates of:

                     (a)  the condition of the order or licence alleged to have been breached; and

                     (b)  the fact that the Attorney-General proposes to revoke the order or licence at the end of 14 days after the day the notice is issued unless the person, within that period, gives the Attorney-General written reasons why the order or licence should not be revoked and those reasons are accepted by the Attorney-General.

             (3)  Subsection (2) does not apply where:

                     (a)  the person’s whereabouts are and remain, after reasonable inquiries on behalf of the Attorney-General, unknown to the Attorney-General; or

                     (b)  there are circumstances of urgency that, in the opinion of the Attorney-General, require the parole order or licence to be revoked without notice being given to the person; or

                     (c)  the person has left Australia; or

                     (d)  in the opinion of the Attorney-General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice to the person.

19AV  Arrest of person whose parole order or licence revoked by Attorney-General

             (1)  A constable may, without warrant, arrest a person whose parole order or licence has been revoked by the Attorney-General.

             (2)  The Attorney-General or the Director of Public Prosecutions may, in relation to a person whose parole order or licence has been revoked by the Attorney-General, apply to a prescribed authority for a warrant in the form prescribed for the purposes of this subsection for the arrest of the person.

             (3)  A person who is arrested under subsection (1) or (2), must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.

19AW  Where person on parole or licence notified of revocation

             (1)  Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied:

                     (a)  that the person is the person named in that revocation order; and

                     (b)  that the person was notified by the Attorney-General of the proposal to make the revocation order; and

                     (c)  that the revocation order is still in force;

the prescribed authority must issue a warrant, in the prescribed form:

                     (d)  authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and

                     (e)  directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences) that the person was serving or had yet to serve at the time of his or her release; and

                      (f)  subject to subsection (3), fixing a non-parole period in respect of the outstanding sentence or sentences.

             (2)  If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority may issue a warrant for the remand of the person in custody pending completion of the hearing.

             (3)  The prescribed authority is not required to fix a non-parole period under paragraph (1)(f) if:

                     (a)  the prescribed authority considers it inappropriate to do so because of the nature of the breach of the conditions of the order or licence that led to its revocation; or

                     (b)  the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less.

             (4)  Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period.

             (5)  A non-parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non-parole period according to its terms.

             (6)  Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).

19AX  Where person on parole or licence not notified of revocation

             (1)  Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied that the person so brought is the person named in that revocation order but is not satisfied that the person was notified by the Attorney-General of the proposal to make that revocation order, the prescribed authority must:

                     (a)  immediately notify the Attorney-General that the person has been brought before that prescribed authority; and

                     (b)  order that the person be detained in custody until the Attorney-General orders that the revocation order be rescinded or until the completion of proceedings under subsection 19AW(1) as applied by subsection (6) of this section.

             (2)  Where the Attorney-General is notified that a person has been brought before a particular prescribed authority, the Attorney-General must, as soon as practicable, notify the person, in writing, of the conditions of the parole order or licence alleged to have been breached and request that the person give him or her, within 14 days of notification of those reasons, a written submission stating why that parole order or licence should not have been revoked.

             (3)  If, within 14 days of a person receiving notification under subsection (2), the person fails to make a written submission to the Attorney-General, the Attorney-General must, as soon as practicable after the end of that period, notify the prescribed authority of a decision not to rescind the revocation order.

             (4)  If, within 14 days of notification under subsection (2), the person makes a written submission to the Attorney-General, the Attorney-General must decide, as soon as practicable after receiving that submission, and on the basis of that submission and any other material the Attorney-General considers to be relevant, whether or not to rescind the revocation order and must, as soon as practicable after so deciding, inform the prescribed authority and the person, in writing, of the decision.

             (5)  If the prescribed authority is notified of a decision to rescind the revocation order, the prescribed authority must immediately order the person to be released from prison.

             (6)  If the prescribed authority is notified of a decision not to rescind the revocation order made in respect of the person, subsection 19AW(1) applies to the person so as to authorise the issue of a warrant as if the prescribed authority had been satisfied of the matters referred to in paragraphs 19AW(1)(a), (b) and (c) and subsections 19AW(3), (4), (5) and (6) apply to that person according to their terms.

19AY  Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied

             (1)  Where a prescribed authority issues a warrant in respect of a person under subsection 19AW(1), or under that subsection as applied by section 19AX, the person may appeal to the Supreme Court of the State or Territory in which the person was arrested against:

                     (a)  the issue of the warrant; or

                     (b)  the calculation, for the purposes of the warrant, of the unserved part of any outstanding sentence; or

                     (c)  the fixing, for the purposes of the warrant, of a non-parole period or the refusal to fix such a period.

             (2)  An appeal may be begun by lodging a notice of appeal with the court within 21 days after the day on which the warrant to which the appeal relates was issued.

             (3)  An appeal is to be by way of rehearing, but the court may have regard to any evidence given before the prescribed authority.

             (4)  The court may, on the application of the person making the appeal, order the release of the person from prison pending the disposal of the appeal, on such conditions as the court determines, and, upon the court’s so doing, the warrant appealed against shall not, unless the person breaks a condition of his or her release, be executed or further executed before the appeal is disposed of.

             (5)  The court must:

                     (a)  if the appeal is against the issue of the warrant—either confirm or revoke the warrant; or

                     (b)  if the appeal is against the calculation of the unserved part of any outstanding sentence—either confirm the warrant or vary the warrant, so far as it relates to that calculation, as specified in the order; or

                     (c)  if the appeal is against the fixing of a non-parole period or the refusal to fix such a period—either confirm the warrant or vary the warrant, if it fixes a non-parole period, as specified in the order.

             (6)  Where a warrant is revoked under paragraph (5)(a), the person to whom the warrant relates, if the court has not already ordered the person’s release under subsection (4), is to be released from prison immediately.

             (7)  In this section:

outstanding sentence has the same meaning as in section 19AW.

19AZ  Evidence before prescribed authority

             (1)  A prescribed authority exercising any powers under this Division may take evidence on oath or affirmation and for that purpose may administer an oath or affirmation.

             (2)  A prescribed authority exercising any powers under this Division may summon a person to appear before the prescribed authority to give evidence and to produce such documents and articles (if any) as are referred to in the summons.

             (3)  A summons under this section shall be served in the same manner as a summons to a witness to appear before a court of summary jurisdiction in the State or Territory where the summons under this section is issued.

19AZA  Disobedience of summons etc.

             (1)  A person who has been served with a summons to appear before a prescribed authority must not fail to appear in obedience to the summons.

Penalty:  10 penalty units.

             (2)  A person who has been served with a summons to produce a document or article to a prescribed authority shall not fail to produce the document or article.

Penalty:  10 penalty units.

             (3)  A person who appears before a prescribed authority shall not refuse to be sworn or make an affirmation or refuse to produce documents or articles, or to answer questions, that he or she is required by the prescribed authority to produce or answer.

Penalty:  10 penalty units.

             (4)  Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

             (5)  Subsections (1) and (2) are offences of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

19AZB  Can person be released on parole or licence if earlier parole order or licence revoked?

                   A parole order may be made or a licence granted, even if a previous parole order or licence has been revoked.

19AZC  Effect of parole order and licence on sentence

             (1)  Where a parole order is made, or a licence is granted, in relation to a person:

                     (a)  until the parole period or licence period ends without the parole order or licence being revoked, or until the person is otherwise discharged from imprisonment, the person is to be taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period; and

                     (b)  if the parole period or licence period ends without the parole order or licence being revoked, the person is to be taken to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period and to have been discharged from imprisonment.

             (2)  Where a parole order or licence in relation to a person is, under subsection 19AQ(2) or (4), to be taken to have been revoked as from the time immediately before the end of the parole period or licence period, subsection (1) has effect as if the parole period or the licence period had not ended without the parole order or the licence being revoked.

19AZD  State and Territory laws providing for leave of absence, pre-release etc. to apply to federal offenders

             (1)  A law of a State or Territory providing for a State or Territory offender to be granted leave of absence from prison, including leave of absence granted by order of a court, applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.

             (2)  A law of a State or Territory providing for a State or Territory offender imprisoned in that State or Territory to be released:

                     (a)  up to 24 hours before the time at which his or her sentence would otherwise have ended; or

                     (b)  where the release day falls on a Saturday, a Sunday or a day which is a public holiday—on the last day before such a day which is not a Saturday, a Sunday or a public holiday;

applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.

             (3)  A law of a State or Territory providing for a State or Territory offender to be released from prison under a pre-release permit scheme (however called) that is prescribed for the purposes of this subsection, applies to a federal offender who is serving a sentence in that State or Territory, subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme, as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.

19B  Discharge of offenders without proceeding to conviction

             (1)  Where:

                     (a)  a person is charged before a court with a federal offence or federal offences; and

                     (b)  the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

                              (i)  the character, antecedents, cultural background, age, health or mental condition of the person;

                             (ii)  the extent (if any) to which the offence is of a trivial nature; or

                            (iii)  the extent (if any) to which the offence was committed under extenuating circumstances;

                            that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

                     (c)  dismiss the charge or charges in respect of which the court is so satisfied; or

                     (d)  discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

                              (i)  that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

                             (ii)  that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

                                        (A)  on or before a date specified in the order; or

                                        (B)  in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and

                            (iii)  that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.

             (2)  Where a court proposes to discharge a person in pursuance of an order made under subsection (1), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him:

                     (a)  the purpose and effect of the proposed order;

                     (b)  the consequences that may follow if he fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and

                     (c)  that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

          (2A)  A person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under this section.

             (3)  Where a charge or charges against a person is or are dismissed, or a person is discharged, in pursuance of an order made under subsection (1):

                     (a)  the person shall have such rights of appeal on the ground that he was not guilty of the offence or offences concerned with which he was charged as he would have had if the court had convicted him of the offence or offences concerned; and

                     (b)  there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or offences concerned as there would have been if:

                              (i)  the court had, immediately before so dealing with him, convicted him of the offence or offences concerned; and

                             (ii)  the manner in which he is dealt with had been a sentence or sentences passed upon that conviction.

             (4)  Where a person is discharged in pursuance of an order made under subsection (1), the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.

20  Conditional release of offenders after conviction

             (1)  Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:

                     (a)  by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

                              (i)  that he will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

                             (ii)  that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

                                        (A)  on or before a date specified in the order; or

                                        (B)  in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;

                            (iii)  that he will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; and

                            (iv)  that he will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed; or

                     (b)  sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).

             (2)  Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him:

                     (a)  the purpose and effect of the proposed order;

                     (b)  the consequences that may follow if he fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and

                     (c)  that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

          (2A)  A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.

             (3)  Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he is dealt with had been a sentence passed upon his conviction for that offence.

             (4)  Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.

             (5)  The maximum amount of the penalty that a court may specify in respect of the offence or each offence in an order made under subsection (1) in relation to a person is:

                     (a)  where the offence is punishable by a fine—the amount of the maximum fine that the court is empowered to impose on the person for the offence; or

                     (b)  where the offence is not punishable by a fine:

                              (i)  if the court is not a court of summary jurisdiction—300 penalty units; or

                             (ii)  if the court is a court of summary jurisdiction—60 penalty units.

             (6)  Paragraph (1)(b) does not apply in relation to a minimum non-parole offence mentioned in section 19AG, or offences that include one or more such minimum non-parole offences. This subsection has effect despite subsection (1) and sections 19AB, 19AC, 19AE and 19AR (which permit or require a court to make a recognizance release order in certain circumstances).

Note:          If the court sentences the person to imprisonment for a minimum non-parole offence, it must fix a non-parole period under section 19AG.

20A  Failure to comply with condition of discharge or release

             (1)  Where a person has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:

                     (a)  issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or

                     (b)  if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the apprehension of the person.

          (1A)  Subsection (1) does not apply to a failure by a person to comply with a condition of an order (other than a failure constituted by the commission by the person of an offence) unless the information is laid before the end of the period for which the person is required by the order to give security to be of good behaviour.

             (2)  Where:

                     (a)  a person who is served with a summons issued under subsection (1) fails to attend before the court as required by the summons; or

                     (b)  a person who has been admitted to bail under subsection (4) fails to attend before the court as required by the conditions of his bail;

the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.

             (3)  A warrant issued under subsection (1) or (2) shall authorize the apprehension of the person, the bringing of the person before the court as soon as practicable after his apprehension and the detention of the person in custody until he is released by order of the court or in accordance with subsection (4).

             (4)  Where a person is apprehended in pursuance of a warrant issued under subsection (1) or (2) and the court before which he is to be brought is not sitting at the time of his arrest, the person shall be brought before a magistrate, who may:

                     (a)  admit the person to bail, on such recognizance (with or without sureties) as the magistrate thinks fit and on the condition that the person appears, on such date, at such time and at such place as the magistrate specifies, before that court; or

                     (b)  direct that the person be kept in custody in accordance with the warrant.

             (5)  Where, in accordance with this section, a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:

                     (a)  in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1):

                              (i)  revoke the order, convict the person of the offence or offences in respect of which the order was made and, subject to subsection (6), deal with the person, for that offence or those offences, in any manner in which he could have been dealt with for that offence or those offences if the order had not been made; or

                             (ii)  take no action; or

                     (b)  in the case of a person who has been released in pursuance of an order made under paragraph 20(1)(a):

                              (i)  without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person;

                             (ii)  revoke the order and, subject to subsection (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he could have been dealt with for that offence or those offences if the order had not been made and he was before the court for sentence in respect of the offence or offences; or

                            (iii)  take no action; or

                     (c)  in the case of a person who has been released by an order made under paragraph 20(1)(b):

                            (ia)  impose on the person a monetary penalty of not more than $1000; or

                            (ib)  subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or

                            (ic)  revoke the order and make an order under section 20AB; or

                              (i)  revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or

                             (ii)  take no action.

          (5A)  The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.

          (5B)  If a court, under subparagraph (5)(c)(ib), amends an order made in respect of a person under paragraph 20(1)(b), the security given by the person under that subsection is, by this section, taken to be a security that the person will be of good behaviour for the period stated in the order as amended.

             (6)  Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:

                     (a)  the fact that the order was made;

                     (b)  anything done under the order; and

                     (c)  any other order made in respect of the offence or offences.

             (7)  Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court may, in addition to dealing with him for that offence or those offences, order that any recognizance entered into by him, or by a surety for him, shall be estreated and any other security given by or in respect of him shall be enforced.

             (8)  Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence or those offences as there would have been if:

                     (a)  in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1)—the manner in which he is dealt with had been a sentence or sentences passed upon his conviction for the offence; or

                     (b)  in the case of a person who has been released in pursuance of an order made under subsection 20(1):

                              (i)  the court had, immediately before so dealing with him, convicted him of the offence or offences; and

                             (ii)  the manner in which he is dealt with had been a sentence or sentences passed upon that conviction.

             (9)  A pecuniary penalty imposed on a person by virtue of subparagraph (5)(b)(i) shall, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, be deemed to be a fine imposed on the person upon his conviction for an offence against the law of the Commonwealth.

20AA  Power to discharge or vary conditions of recognizance

             (1)  Where a person has entered into a recognizance in pursuance of an order made under subsection 19B(1) or 20(1), any of the following persons may apply to the court by which the order was made for the discharge of the recognizance or for a variation of its terms:

                     (a)  an authorized person;

                     (b)  the person who entered into the recognizance;

                     (c)  a surety for the person who entered into the recognizance;

                     (d)  a probation officer appointed in accordance with the order (in this section referred to as a probation officer).

             (2)  Where an application is made under subsection (1) for the discharge of a recognizance, the court (whether or not constituted by the judge or magistrate who made the order in pursuance of which the recognizance was entered into) may, if it is satisfied that notice as required by subsection (5) or (6) has been given and that the conduct of the person who entered into the recognizance has been such as to make it unnecessary that he should remain bound by the recognizance, discharge the recognizance.

             (3)  Where an application is made under subsection (1) for a variation of the terms of a recognizance, the court (whether or not constituted by the judge or magistrate who made the order in pursuance of which the recognizance was entered into) may, if it is satisfied that notice as required by subsection (5) or (6) has been given and it thinks fit to do so, vary the terms of the recognizance in all or any of the following ways:

                     (a)  by extending or reducing the duration of the recognizance;

                     (b)  by altering the conditions of the recognizance;

                     (c)  by inserting additional conditions in the recognizance;

                     (d)  by reducing any liability to make reparation or restitution, by reducing any instalment of any reparation or restitution or by reducing the amount of, or of any instalment of, any costs, compensation or penalty; or

                     (e)  by altering the manner in which any reparation, restitution, compensation, costs or penalty, or any instalment or any reparation, restitution, compensation, costs or penalty, is or are to be made or paid.

             (4)  The court shall not extend the duration of a recognizance beyond:

                     (a)  in the case of a recognizance entered into in pursuance of an order made under subsection 19B(1)—the period of 3 years from the date on which the recognizance was entered into; or

                     (b)  in the case of a recognizance entered into in pursuance of an order made under subsection 20(1)—the period of 5 years from the date on which the recognizance was entered into.

             (5)  Where an application is made under subsection (1) by an authorized person, the authorized person shall cause notice of the application and the date, time and place fixed for the hearing of the application, to be served on the person who entered into the recognizance in relation to which the application is made and:

                     (a)  if that person has a surety in respect of the recognizance—on the surety; and

                     (b)  if that person has a probation officer in respect of the recognizance—on the probation officer.

             (6)  Where an application is made under subsection (1) by a person other than an authorized person, the person making the application shall cause notice of the application, and of the date, time and place fixed for the hearing of the application, to be served on the Director of Public Prosecutions or, if the Director of Public Prosecutions has not established an office in the State or Territory in which the application is made, on the Director of Legal Services, in that State or Territory, in the Attorney-General’s Department, and:

                     (a)  if the application is made by the person who entered into the recognizance and that person has a surety—on the surety;

                     (b)  if the application is made by a surety in respect of the recognizance—on the person who entered into the recognizance; or

                     (c)  if the application is made by a probation officer in respect of the recognizance—on the person who entered into the recognizance and, if that person has a surety in respect of the recognizance, on the surety.

             (7)  Where notice of an application under subsection (1) is served on a surety, the surety is entitled to appear on the hearing of the application and seek to be released from his liability as a surety in respect of the recognizance.

             (8)  Subject to subsections (9) and (10), where under this section a court varies the terms of a recognizance, a person who is a surety in respect of the recognizance, and is not released by the court from his liability, continues to be liable as a surety in respect of the recognizance as so varied.

             (9)  Where under this section a court varies the terms of a recognizance in respect of which a person is a surety:

                     (a)  if the recognizance is varied by extending its duration—the surety ceases to be liable after the expiration of the period for which he agreed to be liable when he became a surety;

                     (b)  if the recognizance is varied by altering a condition—the surety is not liable in respect of non-compliance with that condition as altered; and

                     (c)  if the recognizance is altered by the addition of a condition—the surety is not liable in respect of non-compliance with the additional condition;

unless he agrees to be liable in respect of the recognizance as so varied.

           (10)  Where under this section a court varies the terms of a recognizance in respect of which a person is a surety by altering a condition, the court shall give directions as to the extent (if any) to which the surety is to continue to be liable in respect of the condition as it existed before the alteration, and the surety continues to be liable in respect of the condition to that extent but not otherwise.

           (11)  Where under this section a court varies the terms of a recognizance:

                     (a)  corresponding variations shall, by force of this subsection, be deemed to have been made to the conditions of the order in pursuance of which the recognizance was entered into; and

                     (b)  section 20A applies to and in relation to the order, in respect of acts or things done or omitted to be done after the variation, as if references in that section to the conditions of the order were references to the conditions of the order as so deemed to be varied.

           (12)  In this section, authorized person means the Attorney-General, the Director of Public Prosecutions or a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable offences against the laws of the Commonwealth.

20AB  Additional sentencing alternatives

             (1)  Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.

          (1A)  Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in subsection (1) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.

          (1B)  A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender.

             (2)  Where a court proposes to pass a sentence, or make an order, under subsection (1), it shall, before passing the sentence or making the order, explain or cause to be explained to the person in respect of whom it is proposed to pass the sentence or make the order, in language likely to be readily understood by him:

                     (a)  the purpose and effect of the proposed sentence or order;

                     (b)  the consequences that may follow if he fails, without reasonable cause or excuse, to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the provisions of the laws of the relevant State or Territory that will apply in relation to the proposed sentence or order by virtue of subsection (3); and

                     (c)  if the proposed sentence or order may be revoked or varied under those provisions—that the proposed sentence or order may be so revoked or varied.

             (3)  Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).

             (4)  Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:

                     (a)  impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;

                     (b)  make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;

                     (c)  make any other order that the court is empowered to make.

             (5)  Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on, the person.

             (6)  Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG.

Note:          If the court sentences the person to imprisonment for the minimum non-parole offence, it must fix a non-parole period under section 19AG.

20AC  Failure to comply with sentence passed, or order made, under subsection 20AB(1)

             (1)  In this section, the applied provisions, in relation to a sentence passed or an order made under subsection 20AB(1), means the provisions of the laws of a State or Territory that apply to and in relation to the sentence or order by virtue of subsection 20AB(3).

             (2)  Where a sentence has been passed, or an order has been made, under subsection 20AB(1) in respect of a person and information is laid before a magistrate, whether before or after the expiration of the period for which the sentence or order is to operate or operated, alleging that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, the magistrate may:

                     (a)  issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the sentence was passed or the order was made; or

                     (b)  if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the apprehension of the person.

             (3)  Where:

                     (a)  a person who is served with a summons issued under subsection (2) fails to attend before the court as required by the summons; or

                     (b)  a person who has been admitted to bail under subsection (5) fails to attend before the court as required by the condition of his bail;

the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.

             (4)  A warrant issued under subsection (2) or (3) shall authorize the apprehension of the person, the bringing of the person before the court as soon as practicable after his apprehension and the detention of the person in custody until he is released by order of the court or in accordance with subsection (5).

             (5)  Where a person is apprehended in pursuance of a warrant issued under subsection (2) or (3) and the court before which he is to be brought is not sitting at the time of his arrest, the person shall be brought before a magistrate, who may:

                     (a)  admit the person to bail, on such recognizance (with or without sureties) as the magistrate thinks fit, on the condition that the person appears, on such date, at such time and at such place as the magistrate specifies, before that court; or

                     (b)  direct that the person be kept in custody in accordance with the warrant.

             (6)  Where, in accordance with this section, a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) appears or is brought before the court by which the sentence was passed or the order was made, the court (whether or not constituted by the judge or magistrate who passed the sentence or made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, may:

                     (a)  without prejudice to the continuance of the sentence or order, impose a pecuniary penalty not exceeding 10 penalty units on the person;

                     (b)  revoke the sentence or order and, subject to subsection (7), deal with the person, for the offence in respect of which the sentence was passed or the order was made, in any manner in which he could have been dealt with for that offence if the sentence had not been passed or the order had not been made and he was before the court for sentence in respect of the offence; or

                     (c)  take no action.

             (7)  Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:

                     (a)  the fact that the sentence was passed or the order was made;

                     (b)  anything done under the sentence or order; and

                     (c)  any fine or other pecuniary penalty imposed, and any other order made, for or in respect of the offence.

             (8)  Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence as there would have been if:

                     (a)  the court had, immediately before so dealing with him, convicted him of the offence; and

                     (b)  the manner in which he is dealt with had been a sentence passed upon that conviction.

             (9)  Nothing in this section shall be taken to prevent a sentence passed, or an order made, under subsection 20AB(1) being revoked or varied under the applied provisions otherwise than for a failure to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions.

           (10)  A pecuniary penalty imposed on a person by virtue of paragraph (6)(a) shall, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, be deemed to be a fine imposed on the person upon his conviction for a federal offence.


 

Division 6Unfitness to be tried

20B  Consequences of preliminary finding that person unfit to be tried

             (1)  Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person’s fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person’s legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.

             (2)  If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.

             (3)  Where a court:

                     (a)  to which proceedings have been referred under subsection (1); or

                     (b)  before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;

finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.

             (4)  Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

             (5)  Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

             (6)  For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.

             (7)  In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:

                     (a)  the person may give evidence or make an unsworn statement; and

                     (b)  the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and

                     (c)  the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.

20BA  Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months

             (1)  Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.

             (2)  Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to:

                     (a)  the character, antecedents, age, health or mental condition of the person; or

                     (b)  the extent (if any) to which the offence is of a trivial nature; or

                     (c)  the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.

             (3)  Where the court orders that the person be released from custody, the person must be released accordingly.

             (4)  Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.

             (5)  A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner.

             (6)  Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate.

20BB  Persons found by a court to be likely to be fit within 12 months

             (1)  Where a court determines, under subsection 20BA(4), that a person charged with a federal offence who was found unfit to be tried will become fit to be tried within a period of 12 months after that finding, the court must, at the time of making that determination, also determine:

                     (a)  whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and

                     (b)  if so—whether the person objects to being detained in a hospital.

             (2)  Where a court has made a determination under subsection (1), the court must:

                     (a)  where the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or

                     (b)  otherwise:

                              (i)  order that the person be taken to and detained in a place other than a hospital (including a prison); or

                             (ii)  grant the person bail on condition that the person live at an address or in a place specified by the court;

for a period ending:

                     (c)  when the person becomes fit to be tried; or

                     (d)  when, as soon as practicable after the end of the 12 months referred to in subsection (1), the court makes an order under subsection 20BC(2) or (5) as applied under subsection (4);

whichever happens first.

             (3)  Where a court determines, under subsection 20BA(4), that a person charged with a federal offence who was found unfit to be tried will become fit to be tried within 12 months after that finding then, if the person becomes fit within that period:

                     (a)  if the person had been indicted on the charge before being found unfit—the proceedings on the indictment must be continued as soon as practicable; and

                     (b)  if proceedings for the commitment of the person had been referred to the court under section 20B—those proceedings must be continued as soon as practicable as if they had not been so referred.

             (4)  Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried, within 12 months after that finding but the person does not become fit within that period, then, at the end of that period, subsections 20BC(2) and (5) apply as if the court had originally determined, at that time, that the person would not become fit to be tried and had made, under subsection 20BC(1), a further determination of the kind that it made under subsection (1) of this section.

             (5)  Where subsections 20BC(2) and (5) apply in relation to a person in the circumstances set out in subsection (4), then:

                     (a)  in an order under subsection 20BC(2) as so applied the court must, in fixing the period of detention, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section; and

                     (b)  in an order under subsection 20BC(5) as so applied the court must:

                              (i)  in the case of a person already on bail—order, in lieu of the person’s release from custody, the continuance of the person’s release on bail; and

                             (ii)  in fixing the period of the person’s release for which conditions apply, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section.

             (6)  Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried within 12 months after that finding but the person does not become fit within that period, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.

20BC  Persons found by a court not to be likely to be fit within 12 months

             (1)  Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine:

                     (a)  whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and

                     (b)  if so—whether the person objects to being detained in a hospital.

             (2)  Where a court has made a determination under subsection (1), the court must:

                     (a)  if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or

                     (b)  otherwise—order that the person be detained in a place other than a hospital, including a prison;

for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.

             (3)  The Attorney-General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section.

             (4)  Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation.

             (5)  Despite subsection (2), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (2), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.

             (6)  The conditions may include:

                     (a)  a condition that the person remain in the care of a responsible person nominated in the order; and

                     (b)  a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and

                     (c)  any other condition that the court thinks fit.

             (7)  Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.

             (8)  Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will not become fit to be tried, within 12 months after the finding, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person, in respect of the offence.

20BD  Review by Attorney-General

             (1)  Where a court makes an order under subsection 20BC(2), the Attorney-General must, at least once in each period of 6 months after the day the person is detained under the order, consider whether or not the person should be released from detention.

             (2)  In considering whether the person should be released from detention the Attorney-General:

                     (a)  must obtain and consider:

                              (i)  a report from a duly qualified psychiatrist or psychologist; and

                             (ii)  a report from another duly qualified medical practitioner; and

                     (b)  may obtain and consider such other reports as the Attorney-General considers necessary; and

                     (c)  must take into account any representations made to the Attorney-General by the person or on the person’s behalf.

20BE  Attorney-General may order release

             (1)  The Attorney-General may, after considering under subsection 20BD(1) whether or not the person should be released from detention, order that the person be released from detention.

             (2)  The Attorney-General must not order a person’s release from detention unless the Attorney-General is satisfied that the person is not a threat or danger either to himself or herself or to the community.

             (3)  An order:

                     (a)  must be in writing; and

                     (b)  remains in force for such period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention under subsection 20BC(2)) or for a period of 5 years, whichever is the lesser; and

                     (c)  is subject to such conditions (if any) as are specified in the order.

             (4)  Without limiting the generality of paragraph (3)(c), the conditions that may be specified in the order may include all or any of the following:

                     (a)  a condition that the person reside at an address specified in the order;

                     (b)  a condition that the person present himself or herself for such medical or psychiatric treatment as is specified in the order at such times as are specified in the order;

                     (c)  a condition that the person undertake such medical or mental health therapy as is specified in the order;

                     (d)  a condition that the person undertake such social, vocational or educational counselling as is specified in the order;

                     (e)  a condition that the person participate in such programs relating to financial management, behaviour modification or inter-personal relationships as are specified in the order.

20BF  Release order may be revoked

             (1)  The Attorney-General may, by instrument in writing, revoke an order made under subsection 20BE(1) (in this section called a release order) at any time while that release order remains in force:

                     (a)  if the person concerned has, during that period, failed, without reasonable excuse, to comply with a condition of the order; or

                     (b)  if there are reasonable grounds for suspecting that the person has, during that period, failed, without reasonable excuse, so to comply;

and, where the Attorney-General does so, the instrument of revocation must specify the condition of the order that the person has breached or is suspected of having breached.

             (2)  Before revoking a release order, the Attorney-General must make all such enquiries and call for all such reports as are reasonably necessary for the purpose of determining whether the circumstances referred to in paragraph (1)(a) or (b) apply.

             (3)  Where a release order in relation to a person is revoked:

                     (a)  a constable may arrest the person without warrant; or

                     (b)  the Attorney-General or the Director of Public Prosecutions may apply to a prescribed authority for a warrant for the arrest of the person.

             (4)  A person who is arrested under subsection (3) must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.

             (5)  Subject to subsection (6), where a prescribed authority in a State or Territory before whom a person is brought under subsection (4) is satisfied that:

                     (a)  the person is the person named in the instrument revoking the release order; and

                     (b)  the release order has been revoked and the revocation is still in force;

the prescribed authority must issue a warrant:

                     (c)  authorising any constable to take the person to a specified prison or hospital in the State or Territory; and

                     (d)  directing that the person be detained in prison or in hospital in that State or Territory for such part of the period fixed by the court to be the period of detention under subsection 20BC(2) as had not elapsed at the time of the making of the release order.

             (6)  If the prescribed authority in the State or Territory before whom the person is brought under subsection (4) cannot complete the hearing under subsection (5) immediately, the prescribed authority may issue a warrant for the remand of the person in a prison or hospital in the State or Territory pending completion of the hearing.

             (7)  The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under this section.

             (8)  Where for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for that variation.

20BG  Attorney-General to review detention of persons taken back into detention

             (1)  Where, under subsection 20BF(5), a prescribed authority directs that a person be detained in prison or in a hospital, the Attorney-General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.

             (2)  Subsection 20BD(2) and, subject to the modification set out in subsection (3), section 20BE, apply in relation to an initial consideration and to any reconsideration under subsection (1).

             (3)  For the purposes of applying section 20BE, subsection 20BE(1) has effect as if the reference in that subsection to subsection 20BD(1) were a reference to subsection (1) of this section.

20BH  State or Territory mental health authorities to be notified of certain releases

                   Where a person detained by authority of an order under subsection 20BC(2) or a warrant under subsection 20BF(5) for a specified period in a State or Territory is due to be released because the period of that person’s detention has ended, the Attorney-General must notify the mental health authorities of the State or Territory of the proposed release of the person.


 

Division 7Acquittal because of mental illness

20BJ  Acquittal where person mentally ill

             (1)  Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.

             (2)  The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1).

             (3)  Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation.

             (4)  Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.

             (5)  The conditions may include:

                     (a)  a condition that the person remain in the care of a responsible person nominated in the order; and

                     (b)  a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment.

             (6)  Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.

20BK  Review by Attorney-General

             (1)  Where, under subsection 20BJ(1), a court orders that a person be detained in safe custody in prison or in a hospital, the Attorney-General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.

             (2)  In considering whether a person should be released from custody the Attorney-General:

                     (a)  must obtain and consider:

                              (i)  a report from a duly qualified psychiatrist or psychologist; and

                             (ii)  a report from another duly qualified medical practitioner; and

                     (b)  may obtain and consider such other reports as the Attorney-General considers necessary; and

                     (c)  must take into account any representations made to the Attorney-General by the person or on the person’s behalf.

20BL  Attorney-General may order release

             (1)  The Attorney-General may, after considering under subsection 20BK(1) whether or not the person should be released from custody, order that the person be released from custody.

             (2)  The Attorney-General must not order a person’s release from detention unless the Attorney-General is satisfied that the person is not a threat or danger either to himself or herself or to the community.

             (3)  An order:

                     (a)  must be in writing; and

                     (b)  remains in force for such a period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention in safe custody under subsection 20BJ(1)) or for a period of 5 years, whichever is the lesser; and

                     (c)  is subject to such conditions (if any) as are specified in the order.

             (4)  Without limiting the generality of paragraph (3)(c), the conditions that may be specified in the order may include all or any of the following:

                     (a)  a condition that the person reside at an address specified in the order;

                     (b)  a condition that the person present himself or herself for such medical or psychiatric treatment as is specified in the order at such times and places as are specified in the order;

                     (c)  a condition that the person undertake such medical or mental health therapy as is specified in the order;

                     (d)  a condition that the person undertake such social, vocational or educational counselling as is specified in the order;

                     (e)  a condition that the person participate in such programs relating to financial management, behaviour modification or inter-personal relationships as are specified in the order.

20BM  Release order may be revoked

             (1)  The Attorney-General may, by instrument in writing, revoke an order made under subsection 20BL(1) (in this section called a release order) at any time while that release order remains in force:

                     (a)  if the person concerned has, during that period, failed, without reasonable excuse, to comply with a condition of the order; or

                     (b)  if there are reasonable grounds for suspecting that the person has, during that period, failed, without reasonable excuse, so to comply;

and, where the Attorney-General does so, the instrument of revocation must specify the condition of the order that the person has breached or is suspected of having breached.

             (2)  Before revoking a release order, the Attorney-General must make all such enquiries and call for all such reports as are reasonably necessary for the purpose of determining whether the circumstances referred to in paragraph (1)(a) or (b) apply.

             (3)  Where a release order in relation to a person is revoked:

                     (a)  a constable may arrest the person without warrant; or

                     (b)  the Attorney-General or the Director of Public Prosecutions may apply to a prescribed authority for a warrant for the arrest of the person.

             (4)  A person who is arrested under subsection (3) must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.

             (5)  Subject to subsection (6), where a prescribed authority in a State or Territory before whom a person is brought under subsection (4) is satisfied that:

                     (a)  the person is the person named in the instrument revoking the release order; and

                     (b)  the release order has been revoked and the revocation is still in force;

the prescribed authority may issue a warrant:

                     (c)  authorising any constable to take the person to a specified prison or hospital in the State or Territory; and

                     (d)  directing that the person be detained in prison or in hospital in the State or Territory for such part of the period fixed by the court to be the period of detention in safe custody under subsection 20BJ(1) as had not elapsed at the time of the making of the release order.

             (6)  If the prescribed authority in the State or Territory before whom the person is brought under subsection (4) cannot complete the hearing under subsection (5) immediately, the prescribed authority may issue a warrant for the remand of the person in a prison or hospital in the State or Territory pending completion of the hearing.

             (7)  The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under this section.

             (8)  Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which the person is detained may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for that variation.

20BN  Attorney-General to review detention of persons taken back into detention

             (1)  Where, under subsection 20BM(5), a prescribed authority directs that a person be detained in prison or in a hospital, the Attorney-General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.

             (2)  Subsection 20BK(2) and, subject to the modification in subsection (3), section 20BL, apply in relation to an initial consideration and a reconsideration under subsection (1).

             (3)  For the purposes of applying section 20BL, subsection 20BL(1) has effect as if the reference in that subsection to subsection 20BK(1) were a reference to subsection (1) of this section.

20BP  State or Territory authorities to be notified of certain releases

                   Where a person detained by authority of an order under subsection 20BJ(1) or a warrant under subsection 20BM(5) for a specified period in a State or Territory is due to be released because the period of the person’s detention has ended, the Attorney-General must notify the mental health authorities of that State or Territory of the proposed release of the person.


 

Division 8Summary disposition of persons suffering from mental illness or intellectual disability

20BQ  Person suffering from mental illness or intellectual disability

             (1)  Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:

                     (a)  that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and

                     (b)  that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;

the court may, by order:

                     (c)  dismiss the charge and discharge the person:

                              (i)  into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or

                             (ii)  on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person’s mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or

                            (iii)  unconditionally; or

                     (d)  do one or more of the following:

                              (i)  adjourn the proceedings;

                             (ii)  remand the person on bail;

                            (iii)  make any other order that the court considers appropriate.

             (2)  Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.

             (3)  Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB or 21B in respect of the person in respect of the offence.

20BR  Means by which court may be informed

                   For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself.


 

Division 9Sentencing alternatives for persons suffering from mental illness or intellectual disability

20BS  Hospital orders

             (1)  Where a person is convicted in a State or Territory, on indictment, of a federal offence and the court before which the person is convicted is satisfied that:

                     (a)  the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and

                     (b)  the illness contributed to the commission of the offence by the person; and

                     (c)  appropriate treatment for the person is available in a hospital in that State or Territory; and

                     (d)  the proposed treatment cannot be provided to the person other than as an inmate of a hospital in the State or Territory;

the court may, without passing sentence on the person, make an order (in this section called a hospital order) that the person be detained in a hospital specified in the order for a period specified in the order for the purposes of receiving treatment specified in the order.

             (2)  A court must not make a hospital order unless, but for the mental illness of the person, the court would have sentenced the person to a term of imprisonment.

             (3)  A court must not specify a period of detention in a hospital that is longer than the period of imprisonment to which the person would have been sentenced had the hospital order not been made.

             (4)  Where the court orders a person to be detained in a hospital for a specified period, the court may fix a lesser period of detention during which the person is not to be eligible to be released from the hospital.

             (5)  Before reaching an opinion on the matters specified in subsection (1) in relation to a person, the court must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness.

             (6)  A court may make a hospital order in respect of a person even if the person is serving a federal sentence at the time when, under the order, the person is to begin to be detained in hospital and, where a hospital order is made in such circumstances:

                     (a)  the hospital order is sufficient authority for the person to be detained outside the prison during the period of involuntary hospitalisation under the order; and

                     (b)  the person is to be treated, for the purposes of that sentence, as serving that sentence during the period of involuntary hospitalisation under the order; and

                     (c)  if the person is still liable to serve a part of that sentence when the hospital order ends or is discharged, the person is to be returned for that purpose to the prison where he or she was serving that sentence before the making of the order.

             (7)  Subsection (4) does not enable a court, in the case of a person who is serving a federal sentence at the time when the hospital order begins, to fix a lesser period of detention ending:

                     (a)  if a non-parole period has been fixed in respect of the sentence—before the end of that non-parole period; and

                     (b)  otherwise—before the end of that sentence.

20BT  Lesser periods of imprisonment fixed under hospital orders

             (1)  Where a lesser period of detention is fixed under subsection 20BS(4) in relation to a person detained in hospital under a hospital order, the Attorney-General must, at the end of the lesser period, obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness so as to determine whether or not to release the person from the detention.

             (2)  Unless:

                     (a)  either of the reports of the psychiatrists recommends that the person not be released because of a continuing need for hospital treatment; or

                     (b)  the person continues, at the end of the lesser period of detention, to be required to serve a federal sentence of imprisonment that the person was serving at the time when the hospital order began;

the Attorney-General must order the person to be released on such conditions (including conditions relating to release into the care of another person specified in the order) for the balance of the period of the hospital order as the Attorney-General considers appropriate having regard to the reports and to such other matters as he or she considers relevant.

             (3)  Sections 20BM and 20BN apply in relation to a person released from involuntary hospitalisation by order under subsection (2) as if:

                     (a)  the order under that subsection were a release order made under subsection 20BL(1); and

                     (b)  the references in each of those sections to detention in a prison or a hospital were references only to detention in a hospital; and

                     (c)  the reference in subsection 20BM(5) to the period of detention in safe custody under subsection 20BJ(1) were a reference to the period of detention in a hospital specified in the order under subsection 20BS(1).

20BU  Discharge of hospital orders

             (1)  Where a person is subject to a hospital order, the person or the Director of Public Prosecutions may, at any time while the order is in force, apply to the court that imposed the order to discharge the order and to impose such other sentence as the court thinks appropriate, being a sentence that could have been imposed when the order was made.

             (2)  The court must not discharge a hospital order unless the court is satisfied:

                     (a)  that the person has sufficiently recovered from mental illness no longer to require involuntary hospitalisation; or

                     (b)  that the mental illness will not respond or respond further to hospital treatment.

             (3)  Where the court discharges a hospital order and imposes another sentence instead of the order:

                     (a)  the new sentence must commence on the date of commencement of the order; and

                     (b)  the length of the new sentence must not exceed the length of the order; and

                     (c)  if the sentence is a sentence of imprisonment—the person concerned is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation.

             (4)  Before reaching an opinion on the matters specified in subsection (2) in relation to a person, the court:

                     (a)  must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness; and

                     (b)  if the person has been released, under section 20BR, into the care of another person for the balance of the hospital order—must obtain and consider the report of that other person; and

                     (c)  may obtain and consider such other information as it thinks relevant.

             (5)  An application under subsection (1) to the court that made a hospital order may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the order was made.

20BV  Psychiatric probation orders

             (1)  Where a person is convicted in a State or Territory of a federal offence and the court is satisfied that:

                     (a)  the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and

                     (b)  the illness contributed to the commission of the offence by the person; and

                     (c)  appropriate psychiatric treatment for the person is available in a hospital or other place in the State or Territory; and

                     (d)  the person consents to the order being made;

the court may, without passing sentence on the person, make an order (in this section called a psychiatric probation order) that the person reside at, or attend at, a specified hospital or other place for the purpose of receiving that psychiatric treatment.

             (2)  The court must not make an order unless the person, or the person’s legal guardian, consents to the proposed treatment.

             (3)  An order is subject to the following additional conditions:

                     (a)  that the person will, during such period, not exceeding 2 years, as the court specifies in the order, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed;

                     (b)  that the person will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order.

             (4)  The court may, on the application of the person, of the probation officer appointed to supervise the person or of the person in charge of the hospital or other place where the treatment is being undertaken, vary the treatment that the person is to undertake.

20BW  Breach of psychiatric probation orders

             (1)  Where an order has been made under section 20BV and information is laid before a magistrate, whether before or after the end of the period referred to in paragraph 20BV(3)(a) or (b), alleging that the person has, without reasonable excuse, failed to comply with a condition of the order, the magistrate may:

                     (a)  issue a summons directing the person to appear, on a date, and at a time and place, fixed in the summons, before the court by which the order was made; or

                     (b)  if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the arrest of the person.

             (2)  Where:

                     (a)  a person who is served with a summons issued under subsection (1) fails to attend before the court as required by the summons; or

                     (b)  a person who has been admitted to bail under subsection (4) fails to attend before the court as required by the conditions of that bail;

the court may issue a warrant for the arrest of the person.

             (3)  A warrant for the arrest of a person issued under subsection (1) or (2) also authorises the bringing of the person before the court as soon as practicable after the person’s arrest and the detention of the person in custody until the person is released by order of the court or under subsection (4).

             (4)  Where a person is arrested under a warrant issued under subsection (1) or (2) and the court before which the person is to be brought is not sitting at the time of the arrest, the person must be brought before a magistrate who may:

                     (a)  remand the person to bail on such recognizance (with or without sureties) as the magistrate thinks fit and on the condition that the person appears before the court on such date, and at such time and place, as the magistrate specifies; or

                     (b)  direct that the person be kept in custody in accordance with the warrant.

20BX  Enforcement of psychiatric probation orders

             (1)  Where a person who is subject to an order under section 20BV appears before the court by which the order was made and the court is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the order, the court may:

                     (a)  without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person; or

                     (b)  discharge the order and make an order under section 20; or

                     (c)  revoke the order and, subject to subsection (2), deal with the person for the offence in respect of which the order was made, in any way in which the person could have been dealt with for that offence if the order had not been made and the person was before the court for sentence in respect of the offence; or

                     (d)  take no action.

             (2)  Where a person who is subject to an order under section 20BV is dealt with under subsection (1) for the offence in respect of which the order was made, the court must, in so dealing with the person, in addition to any other matters, take into account:

                     (a)  the fact that the order was made; and

                     (b)  anything done under the order; and

                     (c)  any other order made in respect of the offence.

             (3)  Where a person who has been released in accordance with an order under section 20BV is dealt with under subsection (1) for the offence in respect of which the order was made, the person has such rights of appeal in respect of the way in which the person was dealt with for that offence as the person would have if:

                     (a)  the court had, immediately before so dealing with the person, convicted the person of the offence; and

                     (b)  the manner in which the person is dealt with had been a sentence passed upon that conviction.

             (4)  A pecuniary penalty imposed on a person under paragraph (1)(a) is to be treated, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, as a fine imposed on the person because of the person’s conviction for an offence against a law of the Commonwealth.

20BY  Program probation orders

             (1)  Where a person is convicted in a State or Territory of a federal offence and the court before which the person is convicted is satisfied that:

                     (a)  the person is suffering from an intellectual disability; and

                     (b)  the disability contributed to the commission of the offence by the person; and

                     (c)  an appropriate education program or treatment is available for the person in that State or Territory;

the court may, without passing sentence on the person, order that the person be released, on condition that the person undertake the program or treatment specified in the order for a period specified in the order.

             (2)  Subsections 20BV(2), (3) and (4) and sections 20BW and 20BX apply to a person in respect of whom an order has been made under subsection (1) of this section in the same way as they apply to a person in respect of whom an order has been made under subsection 20BV(1) and, for that purpose, references in those provisions to treatment have effect as if they were references to an education program or treatment of the kind referred to in subsection (1) of this section.


 

Division 10Miscellaneous

20C  Offences by children and young persons

             (1)  A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.

             (2)  Where a person under the age of 18 years is convicted of an offence against a law of the Commonwealth that is punishable by death, he shall not be sentenced to death but the court shall impose such other punishment as the court thinks fit.

21B  Reparation for offences

             (1)  Where:

                     (a)  a person is convicted of a federal offence; or

                     (b)  an order is made under section 19B in relation to a federal offence committed by a person;

the court may, in addition to the penalty, if any, imposed upon the person, order the offender:

                     (c)  to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence; or

                     (d)  to make reparation to any person, by way of money payment or otherwise, in respect of any loss suffered by the person as a direct result of the offence.

             (2)  A person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under subsection (1).

             (3)  Where:

                     (a)  the court orders a federal offender to make reparation to the Commonwealth, to a public authority of the Commonwealth or to any other person by way of payment of an amount of money; and

                     (b)  the clerk, or other appropriate officer, of the court signs a certificate specifying:

                              (i)  the amount of money to be paid by way of reparation; and

                             (ii)  the identity of the person to whom the amount of money is to be paid; and

                            (iii)  the identity of the person by whom the amount is to be paid; and

                     (c)  the certificate is filed in a court (which may be the first-mentioned court) having civil jurisdiction to the extent of the amount to be paid;

the certificate is enforceable in all respects as a final judgment of the court in which it is filed in favour of the Commonwealth, of that public authority or of that person.

21D  Prerogative of mercy and other Commonwealth laws unaffected

             (1)  Nothing in this Part shall be construed as affecting the powers vested in the Governor-General in the exercise of the Royal prerogative of mercy.

             (2)  This Part does not affect the operation of any other law of the Commonwealth, or of any law in force in a Territory, relating to the release of offenders.

21E  Director of Public Prosecutions may appeal against reductions where promised co-operation with law enforcement agencies refused

             (1)  Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

                     (a)  if the sentence imposed is reduced—specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and

                     (b)  if the non-parole period is reduced—specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.

             (2)  Where:

                     (a)  a federal sentence is imposed or a federal non-parole period is fixed; and

                     (b)  the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and

                     (c)  after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking;

the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period.

             (3)  Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person’s undertaking to co-operate with law enforcement agencies, the court hearing the appeal:

                     (a)  if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking—must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and

                     (b)  if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking—may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.

             (4)  In subsection (1):

confiscation proceedings includes:

                     (a)  proceedings for forfeiture orders, pecuniary penalty orders, literary proceeds orders and restraining orders under the Proceeds of Crime Act 2002; and

                     (b)  proceedings for forfeiture orders, pecuniary penalty orders and restraining orders under the Proceeds of Crime Act 1987; and

                     (c)  proceedings for restraining orders and pecuniary penalty orders under Part XIII of the Customs Act 1901.

21F  Prescribed authorities and parole officers

             (1)  Subject to subsection (2), the Governor-General may arrange with the Governor of a State, the Australian Capital Territory Executive, the Administrator of the Northern Territory or the Administrator of Norfolk Island:

                     (a)  for the performance by persons who hold office as Magistrates in that State or Territory of the functions of a prescribed authority under this Part; and

                     (b)  for the performance by officers of that State or Territory of the functions of a parole officer under this Part.

             (2)  Subsection (1) does not authorise an arrangement of the kind referred to in paragraph (1)(a) to be entered into between the Governor-General and the Australian Capital Territory Executive before 1 July 1990.

             (3)  The Attorney-General may appoint persons appointed or engaged under the Public Service Act 1999 to be parole officers for the purposes of this Part.

             (4)  Notice of an arrangement under subsection (1) must be published in the Gazette.

             (5)  In this section:

State does not include the Australian Capital Territory or the Northern Territory.

22  Conditions etc. that a court may impose on certain offenders

             (1)  Where a court makes a relevant order or passes a relevant sentence in respect of a person charged with, or convicted of:

                     (a)  an offence against a law of the Commonwealth or of a Territory, being an offence that is a serious narcotics offence; or

                     (b)  a prescribed offence against a law of the Commonwealth or of a Territory;

it may, at the same time or at a later time, order the person to do all or any of the following things:

                     (c)  to remain in Australia;

                     (d)  to refrain from applying for, or obtaining, an Australian passport;

                     (e)  to surrender possession of any Australian passport held by the person.

             (2)  Subject to subsection (3), an order made under subsection (1) has effect during such reasonable period as is specified by the court in the order.

             (3)  The court may, by order, revoke an order made under subsection (1) or vary such an order as the court sees fit.

             (4)  If the court makes an order under subsection (1) or (3), the Registrar or other appropriate officer of the court, as the case requires, must, as soon as practicable, give to the Secretary to the Department administering the Australian Passports Act 2005 a copy of the order.

             (5)  If the court makes an order under paragraph (1)(e):

                     (a)  the passport must be given to the Registrar or other appropriate officer of the court; and

                     (b)  the Registrar or officer must cause the passport to be kept in such custody as he or she thinks fit until:

                              (i)  the passport is required to be released under subsection (6); or

                             (ii)  the passport is cancelled or expires;

                             whichever happens first.

             (6)  If a passport surrendered under an order under paragraph (1)(e) is in force when that order ceases to have effect, the person having the custody of the passport at that time must, on the application of the person to whom it was issued, cause it to be returned to that person.

             (7)  In this section:

narcotic substance has the same meaning as in the Proceeds of Crime Act 2002.

possession includes possession for supply.

production includes growing and manufacture.

relevant order means an order:

                     (a)  remanding a person, whether on bail or in custody; or

                     (b)  suspending the sentence passed on a person upon his or her entering into a recognizance; or

                     (c)  releasing the person on conditions under subsection 20(1).

relevant sentence means:

                     (a)  a sentence of imprisonment other than a suspended sentence; or

                     (b)  a sentence under section 20AB.

serious narcotics offence means an offence:

                     (a)  constituted by the production, possession, supply, importation or export of a narcotic substance; and

                     (b)  involving a quantity of the narcotic substance that is equal to or greater than the trafficable quantity applicable to the narcotic substance.

trafficable quantity, in relation to a narcotic substance, means:

                     (a)  if paragraph (b) does not apply—a trafficable quantity of the substance within the meaning of the Customs Act 1901; or

                     (b)  if the law against which the offence is committed is not the Customs Act 1901 and that law includes references to trafficable quantity—a trafficable quantity of the substance within the meaning of that law.

22A  State orders relating to passports

             (1)  If, under a law of a State, a court makes an order requiring a person charged with, or convicted of:

                     (a)  a serious narcotics offence against a law of that State; or

                     (b)  such other serious offence against a law of that State as is specified in the first-mentioned law;

to surrender possession of any Australian passport held by the person, the person must surrender the passport to the Registrar, or other appropriate officer, of the court to be dealt with in accordance with that law.

             (2)  In this section:

serious narcotics offence has the same meaning as in section 22.


 

Part ICInvestigation of Commonwealth offences

Division 1Introduction

23  Outline of this Part

             (1)  This Part:

                     (a)  provides for the detention of people arrested for Commonwealth offences (see Division 2); and

                     (b)  imposes obligations on investigating officials in relation to:

                              (i)  people arrested for Commonwealth offences; and

                             (ii)  certain other people who are being investigated for Commonwealth offences;

                            (see Division 3).

             (2)  To avoid doubt, this Part does not confer any power to arrest a person.

             (3)  To avoid doubt, only a person arrested for a Commonwealth offence may be detained under this Part.

23A  Application of Part

             (1)  Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part.

             (2)  This Part does not exclude or limit the operation of a law of a State or Territory so far as it can operate concurrently with this Part.

             (3)  In subsection (2):

law of a State or Territory includes such a law that is given a particular application by a law of the Commonwealth.

             (4)  Where a law of a State or Territory would, apart from this subsection, require the electronic recording of confessional evidence in relation to a Commonwealth offence (whether or not expressed as a condition of the admissibility of that evidence), that requirement ceases to apply on the commencement of this Part.

             (5)  The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.

             (6)  If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:

                     (a)  references to Commonwealth offences included references to that offence; and

                     (b)  references to a law of the Commonwealth included references to a law of that Territory.

23AA  How this Part applies to the Antarctic Territories

             (1)  This Part applies in relation to a person as if he or she were arrested on arrival in a State or Territory if:

                     (a)  the person was arrested within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands; and

                     (b)  the person was brought, while under arrest, to the State or Territory; and

                     (c)  this Part applies in the State or Territory.

             (2)  This Part applies in relation to a person as if he or she first became a protected suspect on arrival in a State or Territory if:

                     (a)  the person was a protected suspect within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands; and

                     (b)  the person travelled, while a protected suspect, to the State or Territory; and

                     (c)  this Part applies in the State or Territory.

             (3)  This Part does not otherwise apply within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands.

23B  Definitions

             (1)  In this Part:

Aboriginal legal aid organisation means an organisation that provides legal assistance to Aboriginal persons and Torres Strait Islanders, being an organisation identified in the regulations for the purposes of this definition.

arrested: a person is arrested if the person is arrested for a Commonwealth offence and the person’s arrest has not ceased under subsection (3) or (4).

Commonwealth offence means:

                     (a)  an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982; or

                     (b)  a State offence that has a federal aspect.

inform, in relation to an investigating official informing a person who is under arrest or a protected suspect, means notify the person:

                     (a)  in a language in which the person is able to communicate with reasonable fluency; and

                     (b)  in a manner that the official has reasonable grounds to believe is a manner that the person can understand having regard to any apparent disability the person has.

investigating official means:

                     (a)  a member or special member of the Australian Federal Police; or

                     (b)  a member of the police force of a State or Territory; or

                     (c)  a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.

investigation period means the investigation period prescribed by section 23C or 23CA, as the case requires.

protected suspect has the meaning given by subsection (2).

question has the meaning given by subsection (6).

tape recording includes audio recording and video recording.

under arrest: a person is under arrest if the person has been arrested for a Commonwealth offence and the person’s arrest has not ceased under subsection (3) or (4).

             (2)  A person is a protected suspect if:

                     (a)  the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and

                     (b)  the person has not been arrested for the offence; and

                     (c)  one or more of the following applies in relation to the person:

                              (i)  the official believes that there is sufficient evidence to establish that the person has committed the offence;

                             (ii)  the official would not allow the person to leave if the person wished to do so;

                            (iii)  the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so; and

                     (d)  none of the following applies in relation to the person:

                              (i)  the official is performing functions in relation to persons or goods entering Australia, and the official does not believe that the person has committed a Commonwealth offence;

                             (ii)  the official is performing functions in relation to persons or goods leaving Australia, and the official does not believe that the person has committed a Commonwealth offence;

                            (iii)  the official is exercising a power under a law of the Commonwealth to detain and search the person;

                            (iv)  the official is exercising a power under a law of the Commonwealth to require the person to provide information or to answer questions; and

                     (e)  the person has not ceased to be a suspect under subsection (4).

             (3)  A person ceases, for the purposes of this Part, to be arrested for a Commonwealth offence if the person is remanded in respect of that offence by one of the following:

               &n